John Adenitire: The Executive Cannot Abrogate Fundamental Rights without Specific Parliamentary Mandate – The Implications of the EU Charter of Fundamental Rights for Triggering Art 50

IMG_0596 (2)Legal action has been initiated against the UK Government to compel it to seek authorisation from Parliament before it can trigger Art 50. Various suggestions have been put forward as to how such legal action should be framed. This post argues that the most compelling case for mandatory Parliamentary Mandate for triggering Art 50 is based on the well-established constitutional principle that only Parliament may abrogate fundamental rights (the ‘Legality Principle’). It will be shown that part of the Legality Principle is that the executive (either acting under subordinate legislation or Royal Prerogative) cannot abrogate fundamental rights without an Act of Parliament having express words to that effect or with necessary implication.

The European Communities Act 1972 (‘ECA’) has given domestic legal force to a series of fundamental rights, in particular (but not exclusively) to a wide array of civil and political rights recognised under the EU Charter of Fundamental Rights (‘EU Charter’). The executive would be abrogating these fundamental rights by unilaterally triggering Art 50. Consistently with the Legality Principle, it may not constitutionally do so by triggering Art 50 through Prerogative Powers. Also, given reasonable scepticism that specific provisions already exist in an Act of Parliament which authorise the executive to abrogate the EU Charter, the Legality Principle encourages the view that the Government may not trigger Art 50 without fresh and unequivocal parliamentary mandate.

The Legality Principle

The Legality Principle is a well-established cornerstone of the UK Constitution. In the House of Lords, Lord Hoffman eloquently put it thus

[T]he principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. (…) In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. (Ex p Simms [2000] 2 AC 115, [131])

In Bancoult (n 1) ([2001] 2 W.L.R. 1219, Divisional Court) Laws LJ applied the Legality Principle in order to declare that the exclusion of the inhabitants of the Chagos Islands from their homeland by the UK Government could not be lawful through the use of subordinate legislation (in that case an ordinance purportedly made under the British Indian Ocean Territory Order 1965). He relied on his previous judgment in Ex p Witham where he had said that

(…) the notion of a constitutional right can in my judgment inhere only in this proposition, that the right in question cannot be abrogated by the state save by specific provision in an Act of Parliament, or by regulations whose vires in main legislation specifically confers the power to abrogate. ([1998] QB 575, [581])

Despite some negative treatment of Bancoult (n 1) by the Supreme Court in Bancoult (n 2) [2009] 1 A.C. 453, the majority accepted this principle and held it applicable against Orders in Council authorising the diaspora of the Chagossians (at [87] but also [44-45]). Importantly, an Order in Council is a piece of primary legislation for an overseas territory enacted by the executive under Royal Prerogative. However, it was held that the Legality Principle could not apply in this case. For Lord Hoffmann this was primarily because the Chagossians did not have a fundamental right of abode to their homeland (at [45]). For Lord Rodger and Lord Carswell this was primarily because the Legality Principle was displaced in this case by s 3 of the Colonial Laws Validity Act 1865 which provided that colonial law (including Orders in Councils) could not be voided unless contrary to an Act of Parliament ([96-102] and [126]).

One may well disagree with the outcome and reasoning of Bancoult (n 2). But the importance of that case cannot be overstated. It establishes that the executive cannot abrogate fundamental rights through Prerogative Powers. Only Parliament may authorise the executive to abrogate fundamental rights by specific words.

Are the Rights Under the EU Charter Fundamental Rights?

The Treaty of Lisbon confers on EU citizens several rights. It is not here argued that all of these rights are fundamental rights in the relevant sense. In Bancoult (n 1) Laws LJ seemed to indicate that for the purposes of the Legality Principle fundamental rights are common law constitutional rights (such as the right to access to a court as in Ex p Simms). This should be doubted as in Bancoult (n 2) the Supreme Court was prepared to accept that Chagossians could hold a fundamental right for the purposes of the Legality Principle arising under the Constitution for the Chagos Islands.

It is here suggested that for the purposes of the Legality Principle fundamental rights are human rights which are directly enforceable in the UK either under statute or the common law. If accepted, this suggestion would classify the rights under the Human Rights Act as fundamental rights. It would also classify, for the following reasons, the rights under the EU Charter as fundamental rights.

The EU Charter has the same status of the EU treaties (art. 6(1) of the EU Treaty). Therefore, it is part of domestic law via the ECA. Accordingly, inconsistent Acts of Parliaments may be disapplied when they conflict with the EU Charter (Factortame (No 2) [1991] 1 AC 603). Despite some early claims to the contrary, it is now abundantly clear that the Charter is justiciable (although not all of its rights are directly enforceable) in UK courts (AB v Secretary of State [2013] EWHC 3453 (Admin)). The Charter has 54 articles containing rights similar to those under the ECHR. It also contains various additional rights, such as freedom of movement for EU citizens within the EU, data protection and various social rights. Importantly, Art 51 of the EU Charter states that it applies to the EU Member States ‘only when they are implementing Union law’. The precise boundaries of this are still subject to debate, however it is clear that various decisions in the UK have been decided on the basis of the EU Charter.

For example, in Benkharbouche v Embassy of the Republic of Sudan [2015] EWCA Civ 33 the Court of Appeal held that certain parts of the State Immunity Act 1978 were contrary to principles of fair trial and non-discrimination. The Court held that it was required by art 47 of the EU Charter (effective remedy) to disapply the relevant sections of the State Immunity Act. The Charter was also relied on in the seminal Supreme Court case of R. (on the application of Evans) v Attorney-General [2015] UKSC 21.

The EU Charter is the only human rights instrument which UK courts may use to disapply Acts of Parliament. Its growing importance for the protection of human rights in the UK cannot be overstated. It would defy reasonable expectations if this was not considered a catalogue of fundamental rights for the purposes of the Legality Principle.

Would Triggering Art 50 amount to Abrogating Fundamental Rights?

As is well known by the readers of this blog, triggering Art 50 would result in negotiations between the UK and the EU as to how the UK would exit the EU. A real possibility of those negotiations is that all existing EU treaties, including the EU Charter, would cease to apply to the UK. Accordingly, EU treaties would no longer be part of UK domestic law under the incorporation mechanism of s 2 ECA. That real possibility would become a certainty if no agreement was reached before the 2 years limit set by Art 50(3).

This means that the fact of triggering Art 50 would not itself amount to abrogating the EU Charter. However, it would open up a real possibility of that happening. To cater for that real possibility, if the Legality Principle is to be respected, Parliamentary approval to trigger Art 50 ought to be sought. Otherwise, in the event the UK leaves the EU without retaining the EU Charter, the fundamental rights under it would have been abrogated without Parliamentary approval. That would be contrary to the UK’s constitutional requirement (i.e. the Legality Principle) and therefore contrary to Art 50(1) which states that ‘Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements’.

Conclusion: The Executive Cannot Trigger Art 50 without Specific Parliamentary Mandate

If the above analysis is correct, one thing regarding Art 50 is clear. Contrary to the Government’s view, the executive may not trigger Art 50 using the Royal Prerogative without having obtained Parliamentary mandate.

Also, the above analysis casts doubts as to whether, as argued by some commentators on this blog, Parliamentary Approval has already been granted, for example under the European Union (Amendment) Act 2008 and/or the European Union Act 2011 or under the ECA itself. It is debatable as to whether the necessary threshold of specific Parliamentary authorisation for abrogating the EU Charter has been reached. Remember that the Legality Principle states that fundamental rights ‘cannot be abrogated by the state save by specific provision in an Act of Parliament’ (Ex p Simms). Given that none of these Acts mention either Art 50 or the EU Charter, it may be legitimate to argue that none of them authorise exposing legal subjects to the real risk of losing the fundamental rights they enjoy under the EU Charter.

John Adenitire, PhD Candidate in Law at Fitzwilliam College, Cambridge. Thanks are due to Thomas Fairclough and Thomas Adams for detailed comments on this piece.

(Suggested citation: J. Adenitire, ‘The Executive Cannot Abrogate Fundamental Rights without Specific Parliamentary Mandate – The Implications of the EU Charter of Fundamental Rights for Triggering Art 50’ U.K. Const. L. Blog (21st July 2016) (available at: (available at: