The UK government has indicated that it intends to appeal a ruling in the High Court that it cannot trigger Article 50 without a vote in parliament. Jo Murkens writes that the decision amounted to a ‘proper drubbing’ for Theresa May’s position and that in failing to understand the constitution of its own country, the government has been taught an important lesson in constitutional law.
Did judges today declare war on democracy? Did the High Court overstep its mark into political territory? On both counts, the answer is 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 .
The irrevocability of Article 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The present case did not have to answer that question as both parties assumed that a notice under Art.50(2) cannot be withdrawn and cannot be qualified.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].
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 .
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 . 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].
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’ . 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  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.
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. . In the court’s opinion, the central plank of the government’s submission was ‘flawed at this basic level’ .
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.
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Jo Murkens – LSE Law
Jo Murkens is Associate Professor in Law at the LSE. He was previously a researcher at the Constitution Unit, UCL, where he led the research on the legal, political and economic conditions and consequences of Scottish independence.
“the government was taught an embarrassing lesson”
I’m not convinced the embarrassment will be anything other than temporary. This feels more like politicians trying to push a legal interpretation as far as they can get away with it and deal with any legal challenge as and when it arrives.
In fact, this decision, if it is upheld next month, could provide Theresa May with exactly the breathing space that she needs to prepare for the very short two years of negotiations; she has her perfect excuse for the pre-notification preparatory talks she was seeking and a negotiating mandate condition from the parliament (or pre-notification conditions) could actually strengthen her hand in talks.
The problem this creates for Theresa May is more a domestic one than one related to the negotiations. Getting a potential bill through parliament will require a political compromise and whatever concessions Remain politicians demand for their support could ultimately have a major impact on the outcome. It’s already an open secret that many think they should vote to allow her to trigger Article 50, but only in exchange for a guarantee that the eventual deal with the EU will be put to another referendum.
Can the government’s case be salvaged by changing the argument in the Supreme Court?
Good article that clarifies an important point: imagine the court’s ruling went the other way. That precedent would then give the Government power to revoke acts of Parliament, or even pass legislation without recourse to Parliamentary procedure. So rather than going against democracy, the ruling upheld the principle of checks and balances innate to UK constitutional law. Without it you could imagine the emergence of a chaotic kind of ‘referendum democracy’, where populist Governments try to circumvent due procedure by putting questions to plebiscite regardless of whether any resulting changes annul guaranteed constitutional/traditional rights and liberties.
I remain unconvinced. Whilst these arguments may be technically ‘correct’, it strikes me as a cynical ploy by Remainers (and their agents) in denial, It is an attempt to subvert the Brexit process by increments, and ultimately, to block it altogether.
It must have been obvious to the High Court that they were applying rulings to a hitherto untested scenario, and to apply the sort of legal minutiae they have chosen to exhume, in this expanse of political no-man’s land, is to remove the matter from all reasonable context. It is also very unhelpful when there are so many other, practical matters to consider.
I daresay that the most troublesome appeals could be upheld if the plaintiff is sufficiently armed with reasons – however ridiculous – and the judiciary sufficiently neurotic to entertain them.
A little common sense?
Only paranoia or a severe lack of understanding of the UK legal system would assert any idea of this being a ploy by Remain campaigners. If anything, the deeply rooted upper-class, traditional values that the High Court generally operates by historically would seem this judgement to go the other way. A lot of respect (as always) must be given to our judges who have and will never let neutrality and precedent go.
Dear Mike – recognise your fears, but don’t agree – this is not “a hitherto untested scenario”, but rather a matter of sound constitutional principle, and far from being in some “expanse of political no-man’s land … remove[d] … from all reasonable context”, it is fundamentally about sovereignty and the rule of law, which is surely the central plank of the Brexiteers’ argument for leaving the EU in the first place. As the article clearly states, “the central issue, settled since 1688, [is] that the Crown cannot use prerogative powers to remove an Act of Parliament”. Thank God – that is, after all, what the Civil War was all about, and the many succession / constitutional debates ever since. Suggest you look carefully at the article published back in June, a few days after the EU Referendum, on https://ukconstitutionallaw.org/2016/06/27/nick-barber-tom-hickman-and-jeff-king-pulling-the-article-50-trigger-parliaments-indispensable-role/ – this outlines the crystal-clear argument that the action of triggering Article 50 must mean an automatic over-riding of the 1972 European Communities Act – which would ride rough-shod over the constitutional principle that the government of the day cannot ignore or unilaterally repeal statute without going to Parliament first. Ergo, the only way that the government can legally trigger Article 50 is if Parliament first approves a Bill to do so, the EU Referendum being purely advisory in law. It is truly shocking that the current administration could possibly have allowed such a mess to come into being – but the alternative, if anybody sanely thinks about it, is clearly so very much worse. No government should be allowed to ignore statute – that would utterly negate the rule of law. Full stop, the end. Rabid pro-Brexiteers, including, sadly, elements of the populist press, would be sensible to think through the implications of such rash moves, and recognise also that, if the primary reason for wanting Brexit is to protect UK sovereignty, then the only place that can properly be protected is in the House of Commons – not in the Cabinet – and the judiciary (which thankfully in this country is independent of government, and thereby enshrines the rule of law) is absolutely right to point that out. To allow anything else to arise would be tantamount to granting the government of the day untrammelled powers to do whatever it wants, whenever and however it wants, without any accountability to Parliament – clearly an unbelievably dangerous state of affairs. The populist elements of the Fourth Estate should be ashamed of itself for rabble-rousing, and should instead applaud the clarity of thought and good sense displayed by our independent judiciary, and castigate the government for its crass ignorance of the UK’s constitution. So yes, a little common sense would be welcome.
Sorry to say Hima, your grammar and syntax rather removes the ability to understand what you want to say. Try again with short phrases?
Perfectly readable to me. It’s only 3 short sentences: Despite what some on either side may believe, the court ruled impartially.
This is article is flawed in so many ways. First of all prerogative powers were used to sign all the treaties of the EU which illegally handed powers to a foreign state, these were a constitutional change in UK law and as such should , as a minimum, been debated in parliament or even triggered a General Election, such a constitutional change, the handing over of sovereignty, should have and can only legally be agreed by the people. Preventing the use of the same powers to reclaim our sovereign powers seems to me to be a complaisant act of treason by the three judges. Secondly, even though the reform bill did not state whether the referendum was to be law or advisory the subsequent confirmation by the Prime Minister at the time and by both the remain and leave MP’s that the decision to leave or remain was with the people in the referendum and would be acted upon with speed if the vote was to leave. Thirdly there has been and many a debate on “Brexit” the main one which won by a huge majority was actually having the referendum and putting the decision into the peoples hands, there will also be a major debate on the “Great Repeal Bill” which will repeal the 1972 EU communities act. A final aspect on this “farce” is that what the judges have done in this decision is render all the previous treaty signatures null and void. So according to these three judges we are not and never have been legally a member of the EU.
“First of all prerogative powers were used to sign all the treaties of the EU which illegally handed powers to a foreign state, these were a constitutional change in UK law and as such should , as a minimum, been debated in parliament”
Er… they were, then they were ratified with a vote in parliament – precisely what Theresa May is arguing shouldn’t happen in the case of triggering Article 50. If you’re going to blunder into a conversation and start branding professors ill-informed then at least get basic facts right.