UK Constitutional Law Association

affiliated to the International Association of Constitutional Law

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: http://ukconstitutionallaw.org)).

21 comments on “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

  1. Steve Gwynne
    July 21, 2016

    In my mind the logic of this argument is backwards. Being an EU member means eu law takes precedence which includes the process of withdrawal.

    Article 50 (3) states clearly that ‘The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.’

    The Fundamental Charter on Human Rights is a treaty provision so will cease to apply upon UK’s formal withdrawal. However it remains the case that the Charter may be included in the withdrawal agreement to safeguard eu citizen rights but it is unlikely since the Convention on Human Rights will continue to apply.

    However, it would seem reasonable that a parliamentary or popular mandate be achieved before the withdrawal agreement can be constituted.

  2. gevreywineclub
    July 21, 2016

    interesting article John, merci – I hope that you are right!

  3. Caroline Brook
    July 21, 2016

    This is a question, rather than a comment, I’m afraid. It concerns the free movement of people after Brexit.

    I have lived in France with my third son ever since failing to return home to Britain to settle, following a 5 year stay in Brussels. In I995 I wrongly failed the Habitual Residence Test (HRT) in Guildford and this failure took 5 years of battle on my part to rectify. We could literally not survive in England – I was recently divorced – and old friends found us an illicit statr of the Ark flat (24m2) in France. But in the intervening 5 years we had fallen to the bottom of the pile and were living in abject poverty in France (not Habitually resident here either) along with another two sons and my vulnerable elderly mother who had lived with us in Belgium.. We had no money to return to UK and my mother died here in terrible circumstances.

    We now live in a French sink estate south of Paris, with some help from the French State boosting my British Pension which went awol due to the circumstances outlined here. And what happens after Brexit? Will we be asked to move back to Britain? Because we can’t – both of us in ill health and me housebound due to an arterial stress induced illness. And no money at all, but with some bits and bobs of furniture. The European Commission has banned me from writing to them about what I see as a lack of free movement.

    Is there anything I can do?

  4. Michael Wilkinson
    July 21, 2016

    The wording of the referendum was discussed by Parliament and modified by agreement and therefore gave approval to the question ‘Stay in the EU or leave the EU’ as surely if there had been a Parliamentary vote in the House.
    It is ridiculous to claim that Parliament did not approve that the referendum should take place and accept any result arising. No motion was raised to challenge the enactment or consequences of a leave vote, or for that matter a remain vote. In short Parliament agreed that the question of EU membership was delegated to the electorate on a simple yes or no basis. It is now up to parliament to agree exit terms etc. having as I have said, agreed to the referendum and its outcome.

  5. IJAZ BADSHAH
    July 21, 2016

    The author seems to have mixed up the UK’s international treaty obligations, an executive prerogative, with domestic human rights obligations enforceable in domestic courts. Firstly, all the human rights guaranteed in the EU Charter are part of ECHR & UK shall remain part of the human rights regime under ECHR despite Brexit. So the invocation of Article 50 shall have no effect on human rights framework and hence no violation of legality principle. Secondly, after Brexit, the European Communities Act ECA shall still remain on the statute books unless revoked or amended by the parliament. So any human rights under EU Charter domesticated by ECA shall have to be ultimately changed, amended or revoked by the parliament.
    In my view the invocation of Article 50 is purely an executive matter having no immediate constitutional or legislative implications.
    Ijaz Badshah LLB ( Honours)

    • Michael Wilkinson
      July 26, 2016

      The wording of the referendum was discussed by Parliament and modified by agreement and therefore gave approval to the question ‘Stay in the EU or leave the EU’ as surely if there had been a Parliamentary vote in the House.
      It is ‘inappropriate’ to claim that Parliament did not approve that the referendum should take place and accept any result arising. No motion was raised to challenge the enactment or consequences of a leave vote, or for that matter a remain vote. In short Parliament agreed that the question of EU membership should be delegated to the electorate on a simple yes or no basis.

  6. richard jarman
    July 21, 2016

    Another interesting contribution to this ongoing debate. Without any attempt at scholarship I have not yet spotted any full consideration of the effect of the EU treaties & legislation on their permanent effect on “parliament”.

    This contribution goes near to the point. We have acquired individual rights, which are now entrenched? A50 allows a state to negotiate provided its constitution allows that; we have attained a completely different status within a greater whole; I am an EU citizen with rights this nation state cannot now abrogate?

  7. Denis Cooper
    July 21, 2016
  8. Denis Cooper
    July 21, 2016

    It’s a great pity that all these arguments were not developed and presented to parliamentarians before we had the referendum and voted to leave the EU.

    Then said parliamentarians might have bothered to defend the sovereignty of their Parliament, as well as our fundamental rights as enshrined in the Beano, by saying to the government:

    “We will not pass this Bill for an EU referendum unless it provides that in the event of a vote to leave the EU you will need our prior approval before you can send in the Article 50 notice that the UK intends to withdraw from the EU”.

    But they didn’t. They yacked on and on about whether to let schoolchildren vote in the referendum but never stopped to think “Maybe the government will lose the referendum, what should happen then? Shouldn’t we decide whether or not that Article 50 notice should be served?”

    It was repeatedly pointed out that the 2013 Wharton referendum Bill did not say what would ensue from a vote to leave the EU, and nor did the 2014 Neill Bill, and nor did the government’s 2015 Bill. Even after MPs had been told in terms that the government did not plan to seek their consent before it put in the notice, they and their counterparts in the other place said and did nothing about it.

    Just had they had done nothing about it in 2003 (when the substance of Article 50 first appeared in the EU Constitution), or 2008 (when they approved the Lisbon Treaty), or 2011 (with the European Union Act), previous good opportunities for them to assert a claim to control it.

  9. Hilary Woollett
    July 21, 2016

    Thank you, I appreciate your view from high minded thinking.

  10. Michael Wilkinson
    July 25, 2016

    The wording of the referendum was discussed by Parliament and modified by agreement and therefore gave approval to the question ‘Stay in the EU or leave the EU’ as surely if there had been a Parliamentary vote in the House.
    It is ‘inappropriate’ to claim that Parliament did not approve that the referendum should take place and accept any result arising. No motion was raised to challenge the enactment or consequences of a leave vote, or for that matter a remain vote. In short Parliament agreed that the question of EU membership should be delegated to the electorate on a simple yes or no basis.

  11. mark hardy
    July 26, 2016

    As one of the direct parties to the litigation, would you learned and interested(ing) lawyers like to ponder over the blog’s summer break the correctness – or otherwise – of my proposition that the Royal Prerogative cannot exist in a Representative Democracy, and that it therefore lapsed (except for non-legal matters e.g. Order of the British Empire etc) when the UK decided and voted that it is a Representative Democracy?

    That decision was taken and written down in the ECA 1972 that sets out that only Representative Democracies can be or become member states.

    This goes way beyond Binder’s letter to the Government that has been widely posted elsewhere, and Sir Brian Leveson PQBD quite rightly ordered confidentiality on all documents subsequent to last Tuesday’s hearing.

    My skeleton argument is not due until September 12th, so plenty of time to ponder whilst imbibing in your deckchairs.

    Many thanks in advance.

    • Denis Cooper
      July 27, 2016

      I’m not a lawyer, but I would like to raise a few points for the consideration of those who are lawyers.

      Firstly when I look at the 1957 Treaty of Rome:

      http://aei.pitt.edu/37139/1/EEC_Treaty_1957.pdf

      I don’t see any reference to “democracy”, representative or otherwise; and nor do I see any such reference in the European Communities Act 1972 as originally enacted to approve the UK’s accession to that treaty:

      http://www.legislation.gov.uk/ukpga/1972/68/pdfs/ukpga_19720068_en.pdf

      When I look at the consolidated versions of the present EU treaties plus the EU Charter:

      http://europa.eu/pol/pdf/consolidated-treaties_en.pdf

      I do see references to “democracy”, “democratic life”, etc, but the only point at which it is qualified as “representative” democracy is in Article 10 TEU which clearly applies to the EU itself rather than to its member states.

      Secondly a glance at this article:

      https://en.wikipedia.org/wiki/Referendums_related_to_the_European_Union

      shows that apart from Germany all of the present EU member states have held at least one referendum related to the EU. In some cases such as Ireland these were constitutionally binding, in others they were technically advisory but it was said beforehand they would be treated as politically binding, while in others they were technically advisory and it was made clear that they would be treated as only advisory. And this does not include national and sub-national referendums on other issues unrelated to the EU.

      Thirdly, if as claimed the UK decided that it was a purely representative democracy through the European Communities Act 1972, why did it then decide to hold a referendum on EEC membership in 1975?

      Fourthly, even if the treaties and laws of the EU did forbid referendums within its member states that could not prevent our sovereign Parliament legislating for a referendum contrary to that prohibition provided that it did so expressly.

      Fifthly, none of these arguments about the legality of the referendum and the right of the government to implement the result arose before the referendum took place, and it’s as plain as a pikestaff that they wouldn’t have arisen afterwards if the vote had gone the other way. These are just anti-democratic, vexatious attempts to frustrate the will of the people as expressed in the referendum, and some would consider it an outrage that lawyers are prepared to accept clients and take their money to pursue such cases.

  12. Pingback: Gavin Creelman: The Relevance of Thoburn to the Article 50 “Trigger” Debate | UK Constitutional Law Association

  13. Pingback: Brexit | Constitutional legislation, fundamental rights and Article 50 – Public Law for Everyone

  14. Malcolm Lidierth
    September 12, 2016

    When MPs voted on the Referendum Bill, they did so with advice from the Parliamentary Library that the referendum result would influence the government in its policy decisions. The question for the referendum was binary: leave or remain. Leaving requires Art 50 to be triggered. Isn’t that sufficient “necessary implication” that Art 50 could be triggered by the executive? No Royal prerogative required then. Instead the executive would be doing what Parliament implied that it might when Parliament passed the Referendum Act.

  15. mark hardy
    September 16, 2016

    Title II Art 10 of the Consolidated Treaty states:

    “Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments, themselves democratically accountable either to their national Parliaments, or to their citizens”.

    How can the PM argue that some vestigial feudal right (aka Royal Prerogative) exists such that the PM can act with sole personal discretion and no other authority merely because HMQ asked her to form a Government?

    Where is the democratic accountability that is said to be binding on the PM and other ministers?

    • Malcolm Lidierth
      September 16, 2016

      Royal prerogative contentious but 2015 Act required executive’s policy to be informed by referendum result (according to advice given by Parliamentary Library to MPs before they voted). What could that imply other than activating Article 50 in the event of a Leave vote?

    • Denis Cooper
      September 16, 2016

      “or to their citizens”

      Eg, if the citizens are asked a question in a referendum and give their answer.

    • Michael Wilkinson
      September 16, 2016

      The wording of the referendum was discussed by Parliament and modified by agreement and gave approval to the question ‘Stay in the EU or leave the EU.

      It is ‘inappropriate’ to claim that Parliament did not approve that the referendum should take place and accept any result arising. No motion was raised to challenge the enactment or consequences of a leave vote, or for that matter a remain vote.

      Parliament agreed that the question of EU membership should be delegated to the electorate on a simple yes or no basis without there being any mention that the referendum was to be only advisory.
      .
      The Act is silent on the question of whether the referendum was only to be advisory.

      Surly that is an end to the matter because if a ‘contract’, in this case an Act of Parliament, is silent on the question of ‘advisory only’ it cannot be relied on in law.

      In regard to article 50; the Act is silent on this issue as well and is thus a consequence of the referendum.

      It would make a mockery of the law if ‘silence’ on an issue can be allowed.

  16. Sean Feeney
    October 1, 2016

    Limited London litigation papers have been published (there are separate claims in Northern Ireland being heard next week) at:

    https://waitingfortax.com/2016/09/

    A House of Commons briefing paper (No. 07212, 3 June 2015)), perhaps that mentioned by Malcolm Lidierth above, is relied on by the “The People’s Challenge” interested parties at footnote 10 to paragraph 16 of their 21 September 2016 skelton argument.

    The point being evidenced is “It is clear from the terms of the European Referendum Act 2015 that the referendum was consultative and the result did not itself constitute a decision to withdraw from the EU in domestic law terms.”

    Footnote 10 says:

    “This was well known to Parliament before the Bill was enacted. In a House of Commons Library Briefing Paper (No. 07212, 3 June 2015) it is said, at p. 25: “[The Bill] does not contain any requirement for the UK Government to implement the results of the referendum, nor set a time limit by which a vote to leave the EU should be implemented. Instead, this is a type of referendum known as pre-legislative or consultative, which enables the electorate to voice an opinion which then influences the Government in its policy decisions… The UK does not have constitutional provisions which would require the results of a referendum to be implemented.” It is telling that this assumes that the implementation of the referendum would need legislation.”

    They appear to be anticipating a defence that the defendant did not make in their detailed ground of resistance, namely, that the European Union Referendum Act 2015 provided for the United Kingdom’s statutory decision to leave the European Union.

    Footnote 11 of the skeleton argument “says the Detailed Grounds is ambiguous, referring to the decision to leave the UK being “articulated” in the referendum result”.

    This appears to an answer to a possible Pepper v Hart [1993] AC 593 reading of the 2015 Act.

    Pepper v Hart does not appear to be mentioned in the skeleton, and the defendant’s skeeton does not yet appear to be in the public domain, so it is unclear if the defence had changed since the detailed grounds of resistance were lodged.

    Reliance on the HoC briefing paper is problematic, given the weight the ratio of Pepper v Hart places on clear statements of government proposers of Bills.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: