The Article 50 case ~ some thoughts.

The decision of the High Court is awaited in the "Brexit litigation" - previous post 13th October.  The issue in the case was stated by Lord Pannick QC (Counsel for Gina Miller) - Can the defendant (the Secretary of State for Exiting the EU), on behalf of the government, lawfully use prerogative powers to give a notification under Article 50 of the Treaty on European Union of this country's intention to withdraw from the EU.  This post takes a look at a couple of aspects arising from the legal arguments in the case and is by no means a full analysis of the whole case.

The structure of Art. 50 itself is that, first, there must be decision to leave the EU taken by the Member State in accordance with its constitutional requirements.  Secondly, there is notification to the EU of that decision.  What amounts to "constitutional requirements" is a matter for the domestic law of the State concerned.

The decision:



At the very heart of the case is the important question of whether a decision to leave the EU was taken.  This was addressed by Dominic Chambers QC representing the claimant Mr Dos Santos.  The submissions are to be found in the transcript for 13th October at pages 147 to 186.   The government's argument was put by the Attorney-General and his submissions commence at page 59 of this transcript for 17th October.

In essence, Mr Chambers argued that Parliamentary sovereignty had not been surrendered to the British people under the Referendum Act.  The government's counter argument was put by the Attorney General.  He argued that further legislation was not required to give effect to the referendum and if Parliament had wished something else it would have said so.  The AG pointed to certain statements in Parliament (see transcript pages 67 and 68) to the effect that the Referendum Act was intended to give the people the final say about membership.  In effect, according to the AG, the referendum result is the decision.    On this, see also the excellent summary by Robert Craig published on the UK Constitutional Law Association blog.

It would obviously have been preferable for Parliament to have made its intentions clear on the face of the Referendum Act but the court will now have to decide the point.  Historically, the judges did not look at Hansard to ascertain Parliament's intention.  This has changed somewhat in recent times since the decision of the House of Lords in Pepper v Hart but it is beyond the scope of this post to examine that.

The court would do well to approach this matter from the legal fact that Parliamentary Sovereignty is, as Mr Chambers put it, the most fundamental legal doctrine of the British constitution. It was therefore for Parliament to specify in the legislation what was to happen if the referendum resulted in a leave vote.  To conclude that Parliamentary sovereignty has been given away or shared ought to require the clearest of words in preference to relying on statements in Parliament.  In this regard, section 8 of the Parliamentary Voting System and Constituencies Act 2011 (the Alternative Vote referendum) stands in contrast to the 2015 Act since the 2011 Act placed a duty on the Secretary of State to implement the result.

The notification:

If there has been a decision then the next issue is the notification.  The claimants argued that prerogative power relating to treaties could not be used to notify the EU since the act of notification leads to removal of rights available to the British people via the mechanism of the European Union Act 1972.

If a notice under Article 50 cannot be revoked then EU rights would inevitably be lost on the day the UK leaves.  The Lord Chief Justice raised this point at an early stage in the hearing when he asked (a) whether notification could be revoked and (b) whether notification could be given conditionally.  Lord Pannick QC responded that the answer to both questions was NO.  This view was not challenged by the government.  Whether the judges will decide that an answer is "necessary" to enable them to decide the case remains to be seen.  If they do, they could refer the matter to the Court of Justice of the EU.  (For an interesting article about whether a reference will occur see Monckton Chambers).

It is arguable that the giving of notice does not remove any rights since Parliament must become involved later in order to repeal the 1972 Act.  This was described by Mr Chambers as the "form over substance argument."  If the notification cannot be revoked then the substance is clear because EU rights will disappear when the UK leaves.  Some of the rights will disappear permanently such as the right for UK citizens to vote in elections to the European Parliament.  Other rights will cease to be Treaty-based rights and may be transformed into rights granted directly by Parliament.  We know that the proposed "Great Repeal Bill" intends to preserve certain rights but, at the same time, to enable Ministers to alter them by using secondary legislation.

John Finnis FBA (Professor of Law Emeritus - University of Oxford) has presented an argument attacking what he describes as Lord Pannick QC's syllogism.  The argument is well worth reading in full - Terminating Treaty-based UK rights.  Finnis puts it this way:

" ... the glaringly fallacious syllogism on which [Lord Pannick] has rested the claim: (1) statutory rights enacted by Parliament cannot be destroyed (removed, defeated, etc.) by executive action without Parliamentary statute [or authorization]; (2) the myriad rights acquired by UK persons under the Treaties given effect in the UK by s. 2(1) ECA 1972 are statutory rights enacted by Parliament; (3) therefore no executive action can be taken to terminate the UK’s adherence to those Treaties without authorization by statute [or other parliamentary authorization].   But rights acquired by virtue of s. 2(1) ECA are not “statutory rights enacted by Parliament”.  They are rights under the treaty law we call EU law, as it stands “from time to time”. They are thus subjected to alteration by decisions made in the international realm by EU or EU-related bodies and processes, in which the Crown participates by exercise of its prerogative, for the most part without restraint or pre-authorization by Parliament, let alone by statute."

However one views the Finnis article, it was not part of the argument before the High Court even though the government could possibly have presented its case that way.

The government will be home and dry if the court is convinced that a decision has been made in accordance with constitutional requirements AND that it is then in order, without further Parliamentary authority, for Ministers to operate under prerogative powers to give the notice.  If a notice under Art 50 cannot be revoked then the hand of the claimant is strengthened.   It is therefore just possible that the judges might opt to make a reference to the EU court but it may also choose to note the point and leave it for what looks like being an inevitable appeal to the Supreme Court.

Links:

Transcripts of the proceedings - see Courts and Tribunals Judiciary website.

UK Constitutional Law Association Blog - Robert Craig - Report on the proceedings 13th October (i.e. the first day of the hearing) and On the Second Day of the Hearing and On the Third (and final) Day of the Hearing.   Note: the Association's blog has numerous articles on many aspects of "Brexit."

Jolyon Maugham QC - Financial Times 14th October - The Article 50 challenge shows parliament should have its say.  Also see, by the same author,  A whine from sour grapes.

Michael Zander QC - New Law Journal - Oral arguments in the Art 50 court case

Public Law for Everone - Professor Mark Elliott has written extensively on this subject.  For example, The Government's case in the Article 50 litigation: A critique and Constitutional legislation, fundamental rights and Article 50.

Spinning Hugo is another blog with several posts on the subject of Brexit.


New York Times - Without a Constitution; "Bexit" is guided by a prerogative.  But whose?

UK Constitutional Law Group - Piet Eeckhout - The UK decision to withdraw from the EU: Parliament or Government and by the same author The remarkable government case in the Art 50 litigation

My view of 27th June and links to views of other commentators