The High Court has ruled that Parliament must be consulted before Article 50 is triggered and Britain begins the process of leaving the EU. Jo Murkens says the judgment was exemplary in its clarity and reasoning, and amounts to a major setback for Theresa May’s plans.
Did judges today declare war on democracy? Did the High Court overstep its mark into political territory? No. The judicial decision in R(Miller) has clearly thrown a spanner in the works of the government’s Brexit strategy. But its focus is strictly constitutional, not political. The court expressed no opinion on whether Article 50 TEU should be triggered. The only question it examined was whether, as a matter of UK constitutional law, the Crown, acting through the government, is entitled to use prerogative powers to trigger Article 50 in order to cease to be a member of the European Union [see paragraph 4 of the judgment].
The irrevocability of Art.50
Before the court could tackle UK constitutional law it needed to address a background question, namely whether notification of the European Council under Article 50 could subsequently be reversed. The answer to that question is actually unclear. Lord Kerr, for instance, thinks it is reversible. Moreover, since the question involves a question of EU Treaty law, the final answer could only be given by the Court of Justice of the EU.
The MPs’ entrance to a Commons committee room. Photo: UK Parliament/ Jessica Taylor via a CC-BY-NC 2.0 licence and parliamentary copyright.
The present case did not have to answer that question as both parties assumed that a notice under Art.50(2) cannot be withdrawn and cannot be qualified. The effect of the notice cannot, for example, be made subject to future parliamentary approval of the UK-EU negotiations. It follows, and both parties agreed, that triggering Article 50 ‘will inevitably result in the complete withdrawal’ of the UK from the EU [10; 11].
Constitutional requirements
Article 50(1) TEU allows the UK to withdraw from the EU ‘in accordance with its own constitutional requirements’. But what does the UK constitution require? Turning to that question, the court addressed the relationship between the Crown’s prerogative powers, i.e. the residue of monarchical authority that is now exercised by ministers, and the doctrine of parliamentary sovereignty. On the one hand, it is an established feature of the UK constitution since 1688 that an Act of Parliament cannot be supplanted by the exercise of a prerogative power [25; 26]. On the other hand, it is equally established that the prerogative powers of the Crown cover international relations and the conclusion of treaties [30].
On the basis of the second point, the government argued that the Crown has a prerogative power to authorise the UK’s withdrawal from the EU, and that this power can only be taken away by express terms in an Act of Parliament. In the absence of express statutory words, the prerogative powers of the Crown over Art.50 remain intact [31]. The court acknowledges the government’s position as correct, but only with respect to rights and obligations created as a matter of international law. As soon as individual rights protected by domestic law are affected, Parliament must be involved [32; 34].
Individual rights
The court then turned its attention to individual rights protected in domestic law, and the extent to which they would be affected by EU withdrawal.
The parties distinguished between three different categories of rights. The first category embraced rights that were capable of replication in domestic law. The Working Time Directive was given as an example: there is nothing in principle to stop Parliament from enacting its provisions into domestic law. The second category refers to rights enjoyed by UK nationals in other Member States. The third category deals with those rights that cannot be replicated in UK law and would be lost upon withdrawal. The right to be selected and to be elected to the European Parliament, and to vote in those elections, would be good examples [57-61].
In relation to categories (i) and (ii), the government claimed that the loss of rights would not be as great as put forward by the claimants. In the court’s view, the government’s submissions on those categories were formally correct, but ‘divorced from reality’ [66]. But it was in relation to category (iii) that the government conceded that those rights would irretrievably be lost upon withdrawal. It is at this point in the decision [63] that the case was lost. The claimants needed to establish a loss of individual rights in the UK, and the government agreed that category (iii) rights would be lost.
Conclusion: a proper drubbing for the government
The decision amounts to a proper drubbing for the government. First, it was not the claimants that landed the hammer blow on the government. The government dealt that blow to itself by agreeing that the Art.50 notification would inevitably lead to the loss of some individual rights. Second, it is entirely proper for the court to be looking for express language in an Act of Parliament before it agrees to override a fundamental constitutional principle, such as the subordination of the Crown to law. This is, after all, what the government was asking the court to do. However, it was the Secretary of State who wanted to reverse the burden by demanding that the claimants find express statutory language that removes the Crown’s powers in the context of international relations. On the central issue, settled since 1688, that the Crown cannot use prerogative powers to remove an Act of Parliament, the Secretary of State was silent. [84]. In the court’s opinion, the central plank of the government’s submission was ‘flawed at this basic level’ [84].
The High Court’s decision is exemplary in its clarity and reasoning. Anyone interested in a tutorial on the UK constitution should read the first 56 paragraphs. The legal challenge was not supposed to be a major obstacle for the government. All it needed to assert and defend were the UK’s own constitutional requirements. In failing to understand the constitution of its own country, the government was taught an embarrassing lesson by the High Court on the Strand. The next stop is the UK Supreme Court.
This post represents the views of the author and not those of the Brexit blog, nor the LSE.
Jo Murkens is Associate Professor in the Department of Law at the LSE.
More by Jo Murkens:
The Great ‘Repeal’ Act will leave Parliament sidelined and disempowered
I see decision re cat (i) rights as unproblematic (in the absence of a Great Repeal Act), decision re cat (ii) rights as odd (rights granted by other EU Member States which are unenforceable in the UK!), and decision re cat (iii) rights as arguable at best (in form if not substance these rights would survive, but in any case the relevant legislation is a mere mechanism for implementing supranational rights. It is not inconceivable that the CJEU would even treat the adoption of such legislation as an act performed by the UK Parliament in its capacity as an organ of the EU.
Any thoughts on the Northern Ireland case (R v McCord)? The Belfast court considered the matter to be not justiciable? Will that be reversed on appeal?
This is a curious judgment. How odd can be seen by imagining a different scenario. Suppose David Cameron had sent a note triggering Art.50 (as he promised) on 24 June as soon as the result was clear. Just what judgment or declaration could the Div Court have rendered if Ms Miller had sued then? It couldn’t prevent a fait accompli. And if it declared that the service was ineffective, wouldn’t it be met with a polite response from Brussels that that’s a matter of EU law and nothing to do with the English court?
I also find the statutory rights argument puzzling. OK: the Case of Proclamations etc makes it clear that the crown can’t take away anyone’s rights by mere fiat. But all that seems to follow from that is that statutory rights arising directly or indirectly from the ECA might not be effectively taken away by an Art.50 declaration. It doesn’t say anything at all about whether Mrs May can make the declaration, leaving its possible effects in English law to another day.
The EU treaties state the the Art.50 must be triggered in accordance with each states constitution. The Supreme court is the ultimate arbiter as to the constitution of the UK, therefore the ECJ would defer to the SC ruling. If David Cameron triggered it immediately after the vote and this ruling was upheld by the SC, the Art.50 process would have to stop and to be restarted from the beginning after an act of parliament.
I am no constitutional lawyer, so I leave the detailed arguments to constitutional lawyers.
I am however a committed European, who has enthusiastically supported British EU membership since the UK joined the EU (at that time the EEC) in 1973.
I have seen a whole stream of primary and secondary EU legislation incorporated into UK law over the past 40 years.
It makes sense that, for the UK to leave the EU, a vast amount of legislation has to be amended at the UK level, and the EU level as well. The only people properly qualified to do this are MPs and Lords at the Westminster level, and MEPs at the Brussels level. This is not “over-ruling the people’s will”; it is a plain statement of fact in any Western democracy with a sovereign legislature.
What part of the word ‘democracy’ don’t you folks understand? All of it apparently.
I am puzzled by the 3 categories. Surely all rights must be (paras 58-61) either Category i) – ‘rights capable of replication in the law of the United Kingdom – or Category iii) ‘rights that could not be replicated in UK law’. Category ii) seems to fall entirely within Category iii) since I don’t see how we can legislate to preserve rights enjoyed in other member states. So, on the face of it, it might seem more natural to deal with ii) as a sub-category of iii).
Andrew
Sorry, I see it now, categories i) and iii) are further defined in the text as rights having an effect in the domestic law of the UK or similar, while category ii) concerns rights enjoyed in other Member States. Andrew
Let us be under no illusion. This has very little to do with allowing parliament a vote on Brexit. It has a great deal to do with keeping Britain in the EU. The Remainers have been bleating ever since the referendum result. They hate demcracy, unless of course it gives them the result that THEY want. They are utterly determined that Brexit will NOT go ahead despite the fact that 52% of those who bothered to turn out and vote wanted it.We on the Leave side are absolutely determined that it WILL go ahead. They will NEVER stop it. This is a TEMPORARY victory only for them. The will of the MAJORITY matters for more the that of the whining whinging minority.
[…] Jo Murkens on the LSE blog has a very good explainer of the legal basis of the judgement, which he considers exemplary in its clarity and reasoning. The decision’s focus is strictly constitutional, not political: the only question it examined was whether, as a matter of UK constitutional law, the Crown, acting through the government, is entitled to use prerogative powers to trigger Article 50 in order to cease to be a member of the European Union. This – it turns out – hinges on a balance between constitutional requirements and individual rights. […]
[…] The government also shot themselves in the foot by admitting that the activation of Article 50 would result in the loss of some individual rights. This moved the triggering of Article 50 from being a simple procedure to something with the […]