UK Parliament must give consent to Brexit, but is a constitutional crisis developing?
High Court rules that UK Government cannot invoke Article 50 TEU through prerogative powers, and must gain approval of Parliament before beginning formal process of exiting the EU.
On Thursday 3rd November 2016 the High Court of England & Wales decided the eagerly awaited and politically sensitive case of Miller & Dos Santos v Secretary of State for Exiting the European Union  EWHC 2768 (Admin). The case centred around the ability of the Government to invoke Article 50 TEU, thereby starting the formal procedure to exit the European Union, without obtaining consent from Parliament. The Government considers that it can do this using the ‘Royal Prerogative’ – residual customary powers reserved for the ‘Crown’. Originally used to separate the powers of the monarch from Parliament, this can today be understood as executive powers still retained for use by the UK Government.
The Government’s argument centred on the claim that withdrawing from international treaties such as those of the EU is part of the role of ‘making and unmaking’ international agreements reserved for the Government through royal prerogative powers. As such, they argued, if Parliament had intended to relieve the executive of the power to begin the process of Brexit, it would have made this explicitly clear in either the European Communities Act (ECA 1972) - the original statute giving domestic effect to law originating from the EU – or more recently in the European Union Act 2011 (which required a popular referendum in case of further EU Treaty reform), or indeed the European Union Referendum Act 2015 itself.
The Government also claimed that rights derived from EU law should not be considered the same as domestic law, as Section 2(1) ECA merely refers to the EU Treaties, which themselves lay down the actual substantive content of these rights. Therefore, Parliament never intended to give domestic effect to these rights unconditionally, but that this would always be subject to the UK’s continued membership of the European Union, which fell within the Government’s prerogative powers. By contrast, the Claimants’ argument was that royal prerogative powers cannot be used to “diminish or abrogate” rights under the law of the United Kingdom. Given the nature of the ECA 1972 and the effect that rights deriving from the EU have in domestic law, this would equate to domestic rights being lost as a result of using prerogative powers. According to the applicants, this violates long standing principles of UK constitutional law.
In its decision, the Court first explains that there was common ground between the parties. Both parties considered that once Article 50(2) TEU is invoked, the process of exiting the EU cannot be reversed. Although only briefly mentioned in the judgment, this crucial assumption goes on to significantly affect the Court’s reasoning, as it means that invoking Article 50 TEU would have the same legal effect as formally exiting the EU. The Court then goes on to systematically dismantle the Government’s entire argument. Most pertinently, the Court criticised the Government’s suggestion that just because Parliament did not explicitly legislate to acquire the power invoked in Article 50 TEU, this meant that the Government should retain it. The Government’s use of methods of statutory interpretation completely ignores, the Court asserts, the case-law on constitutional principles. This presumes that Parliament intends to legislate in conformity with constitutional principles (i.e. prerogative powers not being used to remove individual rights), and not against them unless explicitly mentioned. Decisions such as R (Factortame Ltd) v Secretary of State for Transport and Thoburn v Sunderland City Council demonstrate that Parliament intended the ECA 1972 to produce “profound effects”, including importantly the primacy of EU law over domestic law. This means that the ECA 1972 cannot be implicitly repealed through the enactment of subsequent inconsistent legislation. The Court considered the failure of the Government to even mention this line of case-law meant their arguments were “flawed at this basic level”.
The Court agreed with the Claimants that at stake was the fundamental constitutional principle that the Government has “no power to alter the law of the land by use of its prerogative powers”. According to the Court, Section 2(1) of the ECA 1972 means “all directly applicable EU law is made part of United Kingdom law and is enforceable as such”. In enacting the ECA 1972, “Parliament intended rights to have effect in domestic law and that this effect should not be capable of being undone or overridden by action taken by the (Government) in exercise of its prerogative powers”. During the proceedings, the parties were in agreement over the three categories of rights that the ECA 1972 conferred upon British nationals: (i) rights capable of replication by Parliament (e.g. worker rights enshrined in the Working Time Directive); (ii) rights enjoyed in other EU Member States (e.g. rights connected to the free movement of persons); and finally (iii) rights which cannot be replicated in UK law (e.g. the right to vote and stand for election in European Parliamentary elections).
The Court considered that, if after two years of invoking Article 50 TEU the UK would automatically leave the EU - and therefore legally the same as formally leaving – at least some of these rights would cease to exist within the national legal order. The judges actually seemed perplexed by the Government’s repeated insistence that domestic law would indeed be affected by invoking Article 50 TEU – after all, this meant the Government was implicitly agreeing that constitutional principles relating to prerogative powers would be violated. The Court also emphasised that prerogative powers can be used “solely on the international plane”. However, this necessarily means that it can only be used when it has no effect in domestic law. Using the case of R v Secretary of State for Foreign & Commonwealth Affairs, ex parte Rees-Mogg  QB 552 as an example (which was heavily relied upon by the Government), in which the UK was permitted to use prerogative powers to sign up to the Protocol on Social Policy - an international agreement linked to but not part of the Treaty of Maastricht - precisely because to do so would not “..be altering or affecting the content of domestic law without parliamentary approval”. If one agrees that Article 50 TEU is irrevocable and thus invoking it will inevitably result in individuals losing rights, the Court’s reasoning becomes very persuasive. As the Court emphasised in strong terms, the principle of Parliamentary Sovereignty is the “most fundamental rule” of the UK’s unwritten constitution. As A.V. Dicey famously wrote, “only Parliament can ever have the authority to override or set-aside legislation enacted by Parliament”. In contrast, the Court considers prerogative powers to be (quoting Lord Reid) “…a relic of a past age, not lost by disuse, but only available for a case not covered by the statute”.
The decision has been incorrectly and dangerously labelled as a kind of establishment ‘stitch-up’ by the tabloid press, with claims that ‘unelected judges’ were blocking Brexit and are therefore “enemies of the people”. The case, however, made no comment of the merits of a potential Brexit, merely asserting a long-standing principle that only Parliament can ever have the power to remove directly effective rights from individuals. In this respect, a bill legislating for an EU referendum that does not provide for the explicit repeal of the ECA 1972 can only ever be advisory, as Parliament must make the final decision. It does seem rather curious that so many of those that claimed to be such staunch advocates of parliamentary sovereignty during the run-up to the referendum should suddenly disagree with it if they personally do not like the way it functions.
However, the above is not to say that there is universal agreement on the irrevocability of Article 50. The provision itself merely states that “the Treaties shall cease to apply … two years after the notification” unless the UK and EU unanimously agree to “extend this period”. As the ultimate interpreter of EU law is the Court of Justice of the EU, the Government would be in the ironic position of hoping the Supreme Court references a question to the CJEU to ask if Article 50 is revocable. If it is found to be, merely invoking Article 50 would not by itself result in individuals losing rights and an act of parliament would only be necessary to formally exit. Recently, it has been suggested that the Government will change its line of reasoning at the appeal along these lines, meaning the point could be considered by the Supreme Court. However, unless the Government demonstrates that the UK can unilaterally reverse the Brexit process, legally speaking it may well still be the case that individuals could potentially lose rights as a result of the Government exercising prerogative powers.
The possible irrevocability of Article 50 also has significant consequences for Parliament. Many MPs have already indicated that, whilst they may object to various aspects of the negotiated exit agreement, they will not in principle vote against invoking Article 50 TEU. However, if the process is indeed irreversible, this would result in MPs voting away any real power they would have to influence the exit process! The Government would know that at the end of the negotiations, Parliament would have two options: either agree to the Government’s negotiated deal, or face a sudden complete split from the EU, with no trade relations whatsoever, and all the economic consequences that would arise from this. This paradox, however, has not stopped some political parties from calling for a referendum on the terms negotiated in the exit agreement.
MPs may therefore find themselves in the unenviable position of having to decide whether to implement the ‘will of the people’ and invoke Article 50, even if this is against what they consider to be in the national interest. However, if they vote for what they believe is in the national interest, they face the political danger of ignoring the mandate arising from the referendum. Ultimately, it may be that MPs have to take a ‘leap of faith’ by agreeing to invoke Article 50, but ensuring that the Government commits to preserving certain aspects of the UK’s close ties with the EU, for example ensuring membership of the customs union, or maintaining the legal position of Europeans in the UK after Brexit. It would seem that even if the Court dismisses the Government’s appeal, the constitutional repercussions of Brexit on British politics and society are far from over.