On 3 November, the Divisional Court upheld a legal challenge brought against the government by Gina Miller and others, and ruled that the government cannot use the royal prerogative to trigger Article 50 EU Treaty, and so leave the EU, without reference to Parliament. The Court’s judgment means that the process must be subject to full parliamentary control and oversight. Sionaidh Douglas-Scott explores the ruling in greater depth.
This case has been considered to be one of, indeed perhaps the most important, constitutional cases of this generation. In the light of this, it is unsurprising that it has attracted much commentary, some of it vitriolic. However, it is crucial to remember that the Court stressed in its judgement that this was a pure question of law and the Court is not concerned with, and does not express any view about, the merits of leaving the EU.
The case arose because Article 50(1) EU Treaty allows the UK to withdraw from the EU ‘in accordance with its own constitutional requirements’. But it is not clear what these requirements are. The government argued that the royal prerogative covers international relations and the conclusion of treaties, and so the Crown has a prerogative power to authorise the UK’s withdrawal from the EU. But the claimants argued that the doctrine of parliamentary sovereignty means it is clear constitutional law that an Act of Parliament cannot be supplanted by the exercise of a prerogative power. The relevant Act of Parliament here is the European Communities Act (ECA) 1972, which incorporates EU law, including many rights established by EU law, into national law.
The Court accepted the claimants’ arguments that, once notice is given under Article 50, some rights under EU law (as incorporated into domestic law by the ECA) would inevitably be lost on completion of the Article 50 process. This means that the Government giving the Article 50 notice would be an unauthorised legislator reversing the ECA. Therefore, the Government cannot give notice under Article 50 without reference to Parliament.
A victory for Parliament and rights
This judgement can be seen as a victory for Parliament. During the EU referendum, voters were urged to ‘take back control’ and regain Parliamentary sovereignty from the EU. Yet Parliament is hardly taking back control if the government is free, using its ancient prerogative powers, to manage the whole EU withdrawal process without any significant parliamentary involvement. The High Court judgement also establishes that exclusion of Parliament in the Article 50 process is not only undemocratic but illegal. A wealth of case law supports the claimants’ case, some of it dating back to the 17th century and the time of the English civil wars. Parliament is sovereign and the Executive cannot ignore it, where it has no legal authority to do so. This judgement makes clear that the government does not have any such legal authority in the context of triggering Article 50.
This judgement also reveals the importance of rights in the Brexit process. Through the ECA, every UK national has been endowed with rights under EU law – rights of free movement and residence in other EU countries, but also many other types of rights, such as employment rights or consumer rights. The High Court judgement makes clear that decisions that inevitably remove rights may not be taken by the Executive alone. Parliament must be consulted.
It is impossible to see how these judges might in any sense be branded ‘enemies of the people’. This ruling acknowledges the crucial role of Parliament in protecting rights, and the legal requirement for democratic debate so that rights may not be removed by the government alone. It is not a judicial grab for power. The Court did not seek to overturn any legislation, nor to claim power from the legislature. It upholds a balance of powers between the Parliament, Executive and Courts. It is a reminder that the British Constitution requires that the exercise of political power can only take place within a constitutional framework that provides it with legitimacy and structure.
What are the practical consequences of this judgement? First, the government said it will appeal, in which case it will ‘leapfrog’ to be heard very quickly by the UK Supreme Court. The government might try to change its position, and argue that a notification under Article 50 could be revoked – thus reversing its High Court concession that triggering Article 50 would inevitably result in the withdrawal of the UK from the EU. Some believe such a notice is revocable. But such a reversal would be politically risky, as it would amount to acknowledging that the UK might decide not to leave the EU, and that Brexit does not mean Brexit after all, perhaps not a very likely position for the government to take. It would also involve a question of EU law, and the final answer could only be given by the European Court of Justice, thus involving further delays.
Absent such a change of stance, the High Court ruling is a strong judgement, by a powerful trio of judges including the Lord Chief Justice. If the ruling stands, it will be necessary for a Bill to be introduced in Parliament. Although it is highly unlikely Parliament will vote against triggering Article 50, Parliament may well seek to impose certain conditions on the government. The EU Referendum resulted in a vote for the UK to leave the EU, but it did not determine the way in which the UK leaves the EU. The Court’s judgement means that the elected Parliament will have a role in debating and deciding many matters, rather than their being determined in private by the executive.
Finally, the judgement raises a question of the role of the devolved nations. If Westminster is to be involved, what about the devolved parliaments? By constitutional convention, devolved parliaments are asked for their consent when Westminster either legislates with regard to devolved matters (see now s. 28(8) Scotland Act) or where it legislates to increase or reduce their powers. If a Bill is introduced allowing Article 50 to be triggered, would this require legislative consent motions, and if so, would the devolved nations give their consent? Conflicting answers have been given on this point, and the issue is highly politically charged.
These are interesting, but turbulent times for the British Constitution.
Sionaidh Douglas-Scott is Anniversary Chair in Law and Co-Director at the Centre for Law and Society in a Global Context at Queen Mary University of London.