Brexit - Reflections on a pending divorce

: The UK prepares to leave the EU -  Some reflections on a pending divorce :

Accession to the European Communities:

In October 1971, doubts over many issues affecting Britain's future were aired in a House of Commons debate that lasted six days.  Hansard for 28th October 1971 records that the House of Commons approved the following motion by 356 votes to 244.

"That this House approves Her Majesty's Government's decision of principle to join the European Communities on the basis of the arrangements which have been negotiated."

 On 22^nd January 1972 Ministers duly signed the European Treaties.  The European Communities Act 1972 received Royal Assent on 18^th October 1972 and the UK acceded to the communities on 1^st January 1973.

After 44 years of membership,

the UK is preparing to leave the modern European Union which developed, via many twists and turns, from the original “communities" into a union of 28 member states with a combined population of 508 million.  The UK will also leave the European Atomic Energy Community (Euratom).  The “divorce” from the EU is likely to be difficult and will have far-reaching consequences politically, economically, and legally.  It will be the termination of what can be seen as a “love-hate relationship” – eine Hassliebe as the Germans say – and the future relationship between the UK and the EU remains to be worked out via difficult and uncertain negotiations.

Eurosceptic influence:

Opposition to the policies of supranational European Union institutions and/or opposition to Britain's membership of the European Union has been a phenomenon in British politics ever since accession.  The phenomenon may be referred to as Euroscepticism.   A study of this would be a lengthy task in its own right but this useful “timeline” published by the BBC in May 2015 sets out examples of such scepticism at play.  

The history of UK legislation relating to the EU also demonstrates an increasing desire for Parliament to retain control over matters such as ratification of new European Treaties.  For the most recent example, see the European Union Act 2011 imposing, amongst other things, a requirement for a favourable referendum before any ratification of any treaty amending or replacing the Treaty on European Union (TEU) or the Treaty on the Functioning of the EU (TFEU).  By means of section 18 of this Act, Parliament asserted its sovereignty and stated that:

“Directly applicable or directly effective EU law (that is, the rights, powers, liabilities, obligations, restrictions, remedies and procedures referred to in section 2(1) of the European Communities Act 1972) falls to be recognised and available in law in the United Kingdom only by virtue of that Act or where it is required to be recognised and available in law by virtue of any other Act.”

Whether this provision was legally necessary is a moot point but it certainly made Parliament’s position clear.  Only by virtue of Act of Parliament did EU law have any effect in the UK.

A referendum:

The Conservative Party manifesto for the 2015 General Election promised a “straight in-out referendum” on EU membership.  Parliament duly enacted the European Union Referendum Act 2015 making provision for the referendum and the actual referendum was held on 23^rd June 2016.  Taken overall, the vote was 51.9% to leave and 48.1% to remain – (Turnout 72.2%).  Significantly, and as expected at the time, Northern Ireland voted to remain (440,707 votes to 349,442 - i.e. 45.8% to 44.2%) and Scotland also voted remain (1,661,191 votes to 1,018,322 - i.e. 62% to 38%).  This voting outcome set the scene for potential major constitutional issues should Northern Ireland develop a desire to unite with the Republic of Ireland and/or should Scotland decide it wishes to secede from the United Kingdom.

Prior to the referendum, the Prime Minister (David Cameron) reached an agreement with the EU which contained a number of important provisions but, in the event, the agreement figured only minimally in the referendum campaign and it lapsed when the referendum result was to leave.

The Referendum legislation:

The 2015 Referendum Act did not specify what was to happen once the referendum result was known.  In this regard, the 2015 Act may be contrasted with legislation providing for other referendums such as the “Alternative Vote” (AV) legislation in 2011 – see the Parliamentary Voting System and Constituencies Act 2011  .  That legislation – section 8 – made it perfectly clear what was to happen following the AV referendum. 

It is worth noting here that, when the bill leading to the Referendum Act 2015 was passing through Parliament, there was an attempt by Mr Alex Salmond MP to amend the bill to require a majority for leaving the EU in each of the four component parts of the UK.  It was Amendment 16 (16th June 2015) and the debate may be read here.   The Minister for Europe – Rt Hon David Lidington MP – said: “Amendment 16 does not make sense in the context of the Bill. The legislation is about holding a vote; it makes no provision for what follows. The referendum is advisory, as was the case for both the 1975 referendum on Europe and the Scottish independence vote last year. In neither of those cases was there a threshold for the interpretation of the result. The Government take the view that, in respect of EU membership, we are one United Kingdom. The referendum will be on the subject of the United Kingdom’s membership of the European Union and it is therefore right that there should be one referendum and one result. I hope that the right hon. Gentleman will choose not to press his amendment.​.”  In the event, the amendment did not succeed – BBC 16^th June 2015.

Mr Lidington’s statement was clear that the referendum was advisory.  In other words, once the outcome was known, the result would not be legally binding on either government or Parliament.

Change of Prime Minister:

Following the announcement of the referendum result, Prime Minister David Cameron resigned (Telegraph 24^th June 2016).  On 13^th July 2016, he was replaced by former Home Secretary (Rt Hon Theresa May MP) who, immediately following her appointment, famously stated that “Brexit means Brexit.”  The overall referendum result was therefore accepted by the Prime Minister.  The government she formed was determined to implement the result even against the clear Remain majorities in Northern Ireland and Scotland.  Ministerial appointments made by Mrs May included the appointment of a Secretary of State for Exiting the EU.

Treaty on European Union – Article 50:

The next stage of the process concerned Article 50 of the Treaty on European Union. 

1.       Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention......

Stage 1 - The Article clearly requires, as a first stage, a decision to withdraw being made in accordance with the State’s own constitutional requirements. Naturally, those requirements are to be determined by national and not European Union Law.  The question then is – What are the constitutional requirements in the UK?  In particular, what were to be the respective roles of the government (executive) and Parliament.

The UK government appeared content to proceed on the basis that the referendum was the decision to withdraw.  This “will of the people” argument has considerable political leverage even though the UK operates as “representative democracy”.  Nevertheless, Parliament had not made the referendum result legally binding.  In such circumstances, could the government have proceeded to implement the referendum result or was it necessary to seek Parliamentary authority?

In the events that happened, the constitutional processes for making a decision to withdraw from the EU came to play second fiddle to the question of notification.

Stage 2 - The second stage of Article 50 concerns notification of the decision to withdraw.  A view was strongly held by the government and by many lawyers that prerogative powers relating to treaty making (and unmaking) could be used to give the notice to the EU without the need for specific parliamentary authority. This resulted in the legal challenge mounted by Gina Miller and Deir Dos Santos.  Their argument was essentially that membership of the EU had given the citizen specific rights and those could only be removed by Parliament and not by the executive using prerogative powers.  This was an argument founded on well-established law that the Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament – see the speech of Lord Oliver in J.H. Rayner (Mincing Lane) Ltd v Department of Trade [1990] 2 AC 418 – (sometimes referred to as the Tin Council case).

Litigation:

The Divisional Court (Lord Thomas CJ, Sir Terence Etherton MR and Sales LJ) decided that the Secretary of State did not have the power to give notice of withdrawal without Parliament’s prior authority – (judgment).  This judgment attracted an unprecedented amount of commentary from lawyers and their views undoubtedly shaped the legal argument presented to the Supreme court.  (Links to many of the articles are available in this post of 7^th November 2016).  

The Secretary of State appealed to the Supreme Court of the UK which, exceptionally, sat with all 11 of its justices.  The court dismissed the Secretary of State’s appeal by a majority of 8 to 3.  The majority was Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption and Lord Hodge.  The minority was Lord Reed, Lord Carnwath and Lord Hughes.  The judgments (majority and minority) are available via the Supreme Court website.  

The Supreme Court’s judgment revealed stresses between different views as to where power either did reside or should reside under the United Kingdom’s constitutional arrangements. What role should referendums play in constitutional decision-making? What are the respective powers of Parliament and Ministers with regard to Treaties? What role, if any, should be played by the devolved legislatures and administrations?  It cannot be claimed that the litigation answered all of those questions and much therefore remains for the future. 

Notification Act:

As a consequence of the Supreme Court’s decision, Parliament enacted the European Union (Notification of Withdrawal) Act 2017

The Long Title of the Act is - "An Act to confer power on the Prime Minister to notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU."  Section 1(1) of the Act states - "The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU."

The Act did not impose a duty on the Prime Minister to notify the EU.  That much is clear from the use of the word "may" rather than "shall" in section 1.  The PM was given a "power" to notify.

Was there a decision?

Was there a decision to leave the EU made in accordance with UK constitutional requirements?  This blog has long argued that it would have been legally preferable for Parliament - the UK's sovereign body - to have stated in legislation that a decision had been made - Please see posts of 27th June 2016 and 17th March 2017

The Notification Act did not explicitly state that Parliament had made a "decision" to take the UK out of the EU.  The referendum was "advisory" and so cannot amount to a "decision" in law however much Ministers regard it as politically binding.

Nevertheless, it may be arguable that a decision in accordance with constitutional requirements was reached by a combination of the referendum result, subsequent debates in Parliament and the Notification of Withdrawal Act enacted as a result of the Miller and Dos Santos litigation,

For those who prefer clarity in such matters, all of this appears to be an unsatisfactory and untidy way of going about the making of vital choices for the nation's future.

Notice given:

The government handed withdrawal notice to the President of the EU Council on 29^th March 2017.  The government had “triggered” Article 50.

The analogy with “triggering” a gun came about during the litigation in which Lord Pannick QC (Counsel for Gina Miller) used the analogy of a bullet from a gun.  Once the bullet (i.e. Article 50 notice) leaves the gun it will reach its target (i.e. Brexit) with the inevitability that the treaties would cease to bind the UK.  In consequence, rights (and obligations) having effect within the UK due to the European Communities Act 1972 would be lost at the point when the UK leaves the EU. 

It was agreed between the parties to the litigation that notice under Article 50 could neither be unilaterally withdrawn nor given conditionally.  Furthermore, the Secretary of State for Exiting the EU had indicated that the notice would not be withdrawn in any event.  A definitive answer to this matter was not obtained even though it is a question relating to the interpretation of the Treaty on European Union.  Neither the High Court nor the Supreme Court referred the question to the Court of Justice of the EU.  

The Supreme Court judgment noted at para. 26: - “In these proceedings, it is common ground that notice under article 50(2) (which we shall call “Notice”) cannot be given in qualified or conditional terms and that, once given, it cannot be withdrawn. Especially as it is the Secretary of State’s case that, even if this common ground is mistaken, it would make no difference to the outcome of these proceedings, we are content to proceed on the basis that that is correct, without expressing any view of our own on either point. It follows from this that once the United Kingdom gives Notice, it will inevitably cease at a later date to be a member of the European Union and a party to the EU Treaties.”

References from Northern Ireland:

The Supreme Court also heard  five devolution questions.  The questions arose from litigation in Northern Ireland.  The five questions were:

(i)                Does any provision of the Northern Ireland Act 1998, read together with the Belfast Agreement and the British-Irish Agreement, have the effect that primary legislation is required before Notice can be given?

(ii)               If the answer is “yes”, is the consent of the Northern Ireland Assembly required before the relevant legislation is enacted?

(iii)             If the answer to question (i) is “no”, does any provision of the NI Act read together with the Belfast Agreement and the British-Irish Agreement operate as a restriction on the exercise of the prerogative power to give Notice?

(iv)            Does section 75 of the NI Act prevent exercise of the power to give Notice in the absence of compliance by the Northern Ireland Office with its obligations under that section?

(v)              Does the giving of Notice without the consent of the people of Northern Ireland impede the operation of section 1 of the NI Act?

The court did not actually answer Questions (i), (iii) and (iv) because it considered that the questions had been superseded by its decision on the “main issue” in the Miller and Dos Santos case.  The court held that the answer to Question (ii) was that consent was not required.  Question  (v) was answered in the negative.

The court answered the devolution questions unanimously but the judgment hardly does justice to the arguments put forward including the detailed submissions made by the interveners – the Lord Advocate for Scotland and the Counsel General for Wales. 

Question ii involved consideration of the so-called Sewel Convention - see Supreme Court's majority judgment at paras. 136-151.  The court concluded - "..... we do not underestimate the importance of constitutional conventions, some of which play a fundamental role in the operation of our constitution.  The Sewel Convention has an important role in facilitating harmonious relationships between the UK Parliament and the devolved legislatures.  But the policing of its scope and the manner of its operation does not lie within the constitutional remit of the judiciary, which is to protect the rule of law."

The outcome was that, as a matter of law, the UK government did not need to seek the legislative consent of the Northern Ireland Assembly for any legislation relating to the giving of notice to the EU.

Comment:

The Supreme Court’s majority decision in Miller/Dos Santos is in line with the view that Parliament, via the Referendum Act 2015, had chosen to consult the people but had not made the outcome of the referendum binding in law.  Nevertheless, Parliament had, in effect, made the referendum one of the constitutional requirements to be met before the UK would withdraw – see R (Shindler) v Chancellor of the Duchy of Lancaster – judgment of Lord Dyson MR at para 19.   Whilst the precise effect of the European Communities Act 1972 was the subject of considerable debate, the court stated its view at paragraph 60:

“Many statutes give effect to treaties by prescribing the content of domestic law in the areas covered by them. The 1972 Act does this, but it does considerably more as well. It authorises a dynamic process by which, without further primary legislation (and, in some cases, even without any domestic legislation), EU law not only becomes a source of UK law, but actually takes precedence over all domestic sources of UK law, including statutes. This may sound rather dry or technical to many people, but in constitutional terms the effect of the 1972 Act was unprecedented. Indeed, it is fair to say that the legal consequences of the United Kingdom’s accession to the EEC were not fully appreciated by many lawyers until the Factortame litigation in the 1990s - see the House of Lords decisions in R v Secretary of State for Transport, Ex p Factortame Ltd (No 2) [1991] 1 AC 603 and (No 5) [2000] 1 AC 524. Of course, consistently with the principle of Parliamentary sovereignty, this unprecedented state of affairs will only last so long as Parliament wishes: the 1972 Act can be repealed like any other statute. For that reason, we would not accept that the so-called fundamental rule of recognition (ie the fundamental rule by reference to which all other rules are validated) underlying UK laws has been varied by the 1972 Act or would be varied by its repeal. “

Having accepted the agreed position that Article 50 notification could not be unilaterally withdrawn, the majority decision is also in line with the view that giving notice under Article 50 would inevitably lead to loss of rights.  Once Brexit occurs, none of the European Treaties would apply to the UK and so the European Communities Act 1972 would become ineffective even if it were to be left on the statute book.  (Note: The government has said that it will be repealed).

Criticism and comment:

A]  The Supreme Court’s reasoning has been subjected to some trenchant criticism.  Professor Mark Elliott (Professor of Public Law at Cambridge) wrote:

“If the appearance — or actuality — of a palm-tree mode of constitutional adjudication is to be avoided, the judiciary must discharge a heavy onus by transparently identifying the constitutional principles it applies when deciding hard cases, and offering rigorous reasoning as to how such principles bite upon the pertinent legal and factual issues. That burden, I argue, is not discharged by the majority’s intellectually lackadaisical judgment.”

Professor Elliott’s article is available here and see Cambridge Centre for Public Law

B]  Paul Daly is a Senior Lecturer in Public Law at Cambridge.  On his Administrative Law Matters blog he states:

“I have posted an extended note on the UK Supreme Court’s decision in R (Miller) v Secretary of State for Exiting the European Union on SSRN. My analytical framework is the one I developed in this post, which I wrote between the first-instance and Supreme Court decisions. I was initially quite positive about the Supreme Court’s decision, but became increasingly sceptical about its merits as I worked on this note. I still think there might be something to be said for the Supreme Court’s central conclusion — that Article 50 could not be triggered without legislative authorisation — but the reasoning is, on close analysis, unsatisfactory.”

Paul Daly’s article is available here.

C]  The Judicial Power Project has a considerable number of articles about the Miller case.

D]   Professor Steve Peers (University of Essex), writing on EU Law Analysis (25^th January 2017), commented that – “Despite many constitutional lawyers’ criticism of the technicalities of the judgment, in my view it at least fully expresses the traditional spirit of the UK constitution – and Parliament’s historic role in British political life.”

Professor Peers’ article is available here.

In a recent speech, Lord Neuberger said that the Miller case was “an interesting triangulation exercise between the executive, the judiciary and the legislature.  The judges were effectively being asked whether the executive could carry out one of its fundamental functions, international treaty making and ending, without the formal approval of Parliament in circumstances where the  performance of that function would lead to a substantial change in our law.”  He went on to comment that “it is hard to predict how significant the Miller case will be in legal terms.  It remains to be seen once the dust has settled, but the decision affirmed the central role of the courts in upholding the rule of law including the supremacy of Parliament in the UK’s constitutional arrangements.”

There will be much more debate to come over the so-called “Great Repeal Bill” and it remains to be seen how Parliament handles this in the event that the Conservative Party forms the next government.  A White Paper was published at the end of March 2017.   As the House of Lords Constitution Committee observed in its report  “The ‘Great Repeal Bill and delegated powers”, Parliament will need to be especially vigilant regarding the powers given to Ministers to make secondary legislation.  During the Brexit process, Parliament will also need to be alert to the actual exercise by Ministers of such powers.   This will be particularly important with regard to ensuring that important rights of the citizen are not removed.

If Labour were to form the next government there would be a European Union Rights and Protection Bill in place of the Conservative Great Repeal Bill.  This would ensure there is no detrimental change to workers’ rights, equality law, consumer rights or environmental protections as a result of Brexit.

The future:

As the EU Guidelines for Brexit negotiations point out, the relationship between the Union and a non member State cannot offer the same benefits as Union membership but the guidelines also remark that strong and constructive ties will remain in both sides’ interest and should encompass more than just trade.  The present UK-EU relationship is entering into its sunset but a new dawn will break.  What the times ahead will hold cannot be forecast with too much precision but it is to be hoped that a mutually beneficial relationship will emerge. Much should be achievable with a true spirit of sincere cooperation on both sides. 

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