Friday 2 December 2016

The Brexit appeal - the scene is set

This post takes an admittedly simplified and hopefully straightfoward look at the forthcoming hugely important Brexit case to be heard in the Supreme Court of the UK commencing Monday 5th December - (Supreme Court).  The European Union (EU) referendum held on 23rd June 2016 resulted in an overall UK majority to leave the EU but, significantly, voters in Scotland and Northern Ireland voted to remain.  BBC – Referendum results.

The UK is a member of the EU because the government signed the various Treaties in 1972 and Parliament then enacted the European Communities Act 1972 to give effect to EU law in the UK - (see Note 1 below).  It is an Act to “make provision in connection with the enlargement of the European Communities to include the United Kingdom, together with (for certain purposes) the Channel  Islands, the Isle of Man and Gibraltar.”
The Treaty on European Union contains Article 50 enabling a Member State to leave the Union.  The article requires (a) that a decision to leave be made in accordance with national constitutional requirements and (b) that notice of the decision is given to the European Council.  This triggers the leaving process and will at some point result in EU law ceasing to apply in the UK.  Lawyers disagree on whether the UK could unilaterally decide to revoke its notice and thereby reverse the process.  A definitive legal answer to that question would necessitate a journey to the Court of Justice of the EU (CJEU).  If the Supreme Court were to consider that an answer was necessary to decide the appeal then, as a final court of appeal, a reference to the CJEU would have to be made - (see Note 2 below).  There is generally a discernible lack of appetite for that course.

The British government claims that it already has the power to give notice to the European Council that a decision to leave has been made.  The power is, they argue, available under what are known as Royal Prerogative powers dealing with foreign affairs and, in particular, treaties. 

Prerogative powers are important.  It was by such power that Her Majesty the Queen appointed Theresa May as Prime Minister when David Cameron resigned - (see Note 3 below).  It is under prerogative powers that the government may take the nation into a war.  Also, prerogative powers enable Ministers to enter into treaties with other countries or international bodies - (see Note 4).

The courts of law (i.e. Her Majesty’s Judges) have the long-established right and duty to decide whether (a) any claimed prerogative power exists and if so (b) what legal limits apply to the power.  This right is traceable back to the great constitutional struggles of the 17th century between the King and Parliament.  One important limit developed by the courts is that prerogative power may not be used where the same ground is covered by an Act of Parliament – (lawyers call this the “De Keyser” principle after the House of Lords decision in Attorney-General v. De Keyser's Royal Hotel [1920] AC 508  ).   Another important limit was stated by Lord Oliver of Aylmerton in a case called J.H. Rayner (Mincing Lane) Ltd v Department of Trade [1990] 2 AC 418.  He said:

“ ..... as a matter of the constitutional law of the United Kingdom, 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. ....”

Even where a prerogative power exists it is also important to note that “constitutional conventions”  play a part so that, for example, the Queen normally appoints as Prime Minister the leader of the political party best able to command a majority in the House of Commons.    Conventions are basically similar to codes of practice or guidance about what it is advisable to do in a given situation.  Conventions are NOT laws but they are important constitutionally.  Ministers of the Crown are also accountable to Parliament for the way in which they exercise their powers.

(If you wish to read more about prerogative power please see my post here).

The claim by the government has been opposed by various “claimants” who argue that the government does not have the power to “trigger” Article 50 without the consent of Parliament.  They argue that this is because triggering Article 50 will deprive the citizen of rights and prerogative power may not be used to remove or alter such rights.

The High Court heard the claimant's arguments and agreed with them (Judgment).  The court comprised the Lord Chief Justice (Lord Thomas CJ), the Master of the Rolls (Sir Terence Etherton MR) and a Lord Justice of Appeal (Lord Justice Sales).  That is, by any standards, a strong court.  

The government has appealed to the Supreme Court.

The appeal has attracted "references" and "interventions" from various sources and these have given the case added dimensions that were not present when the High Court heard the case.   For example, Scotland, Wales and Northern Ireland have each advanced a number of particular reasons why Parliament should decide the issue rather than leaving it to Ministers to use the prerogative.  There can be no doubt that Brexit will result in significant changes to the devolution settlements and all of the devolved governments /administrations are concerned about this being achievable by prerogative power.  They say it is for Parliament alone to alter such constitutional arrangements.

Scotland, Wales and Northern Ireland have “devolved” administrations.  No uniform model of power devolution within the UK has been adopted and so the precise detail varies from one nation to the other but important strands run through all the devolution arrangements.  There is European Union (EU) membership.  Another strand is the so-called "Sewel Convention" which provides that the UK Parliament will not normally legislate for devolved matters without the consent of the devolved legislature affected.  Motions giving such consent under the convention are referred to as Legislative Consent Motions (LCM).  For Scotland, the convention is now in statutory form - Scotland Act 2016 section 2.  The Wales Bill clause 2 - currently progressing through Parliament - will put the convention in statutory form for Wales.  For Northern Ireland, the convention continues to apply.  An important point is that the Sewel Convention operates between legislatures and the ultimate decision whether to legislate without the consent of a devolved legislature is a decision for the UK Parliament and not for the executive.

The case has already attracted an enormous amount of comment in legal circles and there are links to much of this in my earlier post.   The various commentaries often contain subtle, even intricate, legal argument and it remains to be seen whether any of this gains traction with the Supreme Court.  (Some of the commentaries are referred to in the government’s case).

For my part, I hope that the High Court’s decision is upheld.  My reasons are stated in this post of 27th June.   The opposing case will be powerfully argued.   A “stellar” cast of Queen’s Counsel will appear for the government and other parties in court.  We will know the Supreme Court’s decision in the New Year.  All 11 of the present justices will sit on the appeal.  The possibility of a split decision cannot be ruled out.

Finally, in the event that it requires any emphasis, the case is NOT about the POLITICAL merits of Brexit.  It is a question of LAW as to the exact scope of powers held by Ministers.  If it is decided that the matter requires Parliamentary approval then there is talk that the government will bring forward a short Bill - The Independent  - and legislators will be faced with the choice of approving Brexit or defying the electorate's overall vote.  Those in the House of Commons will be ultimately answerable to the electorate.  Those in the House of Lords (unelected) will have to consider the extent to which they may properly oppose the government's manifesto commitment to honour the outcome of the referendum - (see Note 5).  All of that will be in the political sphere and is NOT the concern of the court.

Full details of the case may be read via the Supreme Court’s website.  I will not be able to take four days out to follow every nuance of the the hearing but there are those who are lucky enough to be able to do so.  The Supreme Court blog is one.

The Supreme Court's live feed will cover the entire proceedings, with no delay.   See the Supreme Court website for details of "catch up" video and transcripts.


1.  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."

2.  References are made under Article 267 Treaty on the Functioning of the EU.

3.  The United Kingdom is a constitutional monarchy with HM The Queen as Head of State.  The British government is, technically, Her Majesty's Government and the Queen formally appoints Ministers of the Crown.

4.  The UK is a party to over 14000 treaties.

5.  Conservative Party manifesto 2015 - see page 72 onwards and especially page 73.

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