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Mikolaj Barczentewicz: Consequences of the High Court’s Reasoning in the Article 50 Judgment: EU Law-making Unlawful

Mikolaj BarczentwiczIntroduction

In its judgment in Miller (the Article 50 litigation), the High Court had no doubts that it was defending constitutional orthodoxy. The issue at stake was that of the limits of executive action in the international sphere when this has consequences in UK law. The Court relied on the principle that the crown cannot change law without statutory authority. John Finnis, David Feldman, as well as Mark Elliott and Hayley Hooper argued that the Court erred by an over-broad reading of the principle and in its application. Finnis framed his argument using an analogy between withdrawing from a double-taxation treaty and withdrawing from the EU Treaties. However, some may have a worry that the analogy fails because EU law has a sufficiently special status in UK law or for some more technical reason.

I show here that even if that is the case, there is another class of executive actions rendered unlawful if one accepts the High Court’s reasoning in Miller. I am referring to voting by UK ministers in the EU Council in favour of EU secondary legislation that diminishes any individual rights derived from UK or EU law. It is difficult to assess exactly how many times, on this argument, UK ministers broke UK constitutional law since the UK joined the European Economic Community (EEC) in 1973. What is not difficult to see is how staggeringly surprising is the conclusion that such law-breaking has been taking place. I neither criticise nor defend this conclusion here. My ambition is merely to develop the argument for it, applying faithfully the logic adopted by the High Court.

In her recent comment, Sionaidh Douglas-Scott noticed and dismissed this possibility saying:

… in cases outside of treaty amendment (where an EU Regulation is repealed for example) where rights are eliminated, the House of Commons European Scrutiny committee has the possibility of assessing the relevant EU measure, which should be deposited in Parliament by the Government.

She uses scrutiny by parliamentary committees as an argument for lawfulness of UK involvement in diminishing rights via the EU. However, on Miller terms this is insufficient: what is needed is express authority given in an Act of Parliament. No ‘green light’ from a Commons or Lords committee, no ‘special role’ for MPs to ‘have a say’ granted in a mere resolution of the Commons or of the Lords come close to providing proper legal authority. If we are serious about Miller, then such half-measures will not do.

The argument is straightforward. Voting in the EU Council on proposals of EU secondary legislation constitutes executive action that as such requires legal authority. The authority, in principle, could be (1) that of the royal prerogative to conduct international relations or (2) of s. 2(1) of the European Communities Act (ECA) 1972. In the first case, application of Miller is very simple: the executive cannot use the prerogative in such a way as to diminish individual rights. In the second case, I need to say a bit more about the proper construction of s. 2(1) ECA 1972. The point is that, if one interprets the ECA the way the High Court did in Miller, s. 2(1) ECA cannot provide sufficient authority for voting for measures that would have a consequence of diminishing rights. And we should remember how liberal the High Court was in admitting what kinds of rights are so protected. I hope it begins to become apparent to careful readers of the Miller judgment that there is some plausibility to this analogy. It is now time to fill in the details.

How voting in the Council may diminish individual rights

The Council of the European Union

It does not require special argument that EU secondary law sometimes modifies and diminishes rights that individuals have under EU law or directly under UK law (e.g. the Kadi saga). And some, if not most, of that secondary law is created with express assent of UK government, by a vote in the EU Council. Importantly, the members of the Council are not EU functionaries, unlike the members of the Commission. Article 16(2) the Treaty on European Union makes this clear (emphasis mine):

The Council shall consist of a representative of each Member State at ministerial level, who may commit the government of the Member State in question and cast its vote.

What is particularly important for the present argument is that it is governments (executive branches) of EU member states which are represented in the Council and which cast votes through ministers representing them.

The Proclamations principle

As the High Court said in Miller (at [25]):

The Crown has only those prerogative powers recognised by the common law and their exercise only produces legal effects within boundaries so recognised. Outside those boundaries the Crown has no power to alter the law of the land, whether it be common law or contained in legislation.

And later, agreeing with the claimants (at [95]):

… that the Crown could not change domestic law and nullify rights under the law unless Parliament had conferred upon the Crown authority to do so either expressly or by necessary implication by an Act of Parliament.

This principle was expressed in many authorities, notably in The Case of Proclamations (1610) and the in Bill of Rights 1688. The Court refers to its version as summarised in The Zamora [1916] 2 AC 77. For brevity, in what follows I refer to this principle as ‘the Proclamations principle’.

What sort of causal link must the negative consequences for rights have with executive action?

The Council normally does not make EU law alone and even if it did, it is still the case that the representatives of the United Kingdom do not make decisions for the Council but merely participate in decision-making. Someone might say that this is a significant difference with notification of a decision to withdraw from the EU in accordance with Article 50 Treaty on European Union (TEU), which – whatever its consequences – is a unilateral act for the UK to undertake. And, if no one does anything, once Article 50 is triggered there is the automatic consequence of leaving the EU after two years. The High Court in Miller accepted that an Article 50 notification by the executive would constitute altering of UK law by the executive that could only be done with statutory authority. Would the situation be different had Article 50 required, for instance, assent of majority of member states (or even of one other state) for triggering the procedure of withdrawal?

This sounds like the sort of ‘highly formalistic’ (Miller at [66]) argument that the Court rejected as inappropriate. Yes, the Court does say that ‘[t]he effect of the giving of notice under Article 50 on relevant rights is direct’ (at [11]). But given the Court’s general, robust approach to defending rights from executive action, executive authority to diminish rights when acting with accomplices, so to speak, is surely also ruled out by the logic of the Court’s position.

Aiming to be faithful to the reasoning adopted by the High Court, I suggest that in international affairs the Proclamations principle is triggered whenever UK government acts, alone or in concert, and when the legal consequences of the act are to diminish some individual rights given effect to in UK law. Hence, for instance: enacting an EU regulation, together with other members of the Council and together with European Parliament, may trigger the Proclamations principle (if the regulation diminishes rights).

The High Court’s discussion of the ‘category II’ rights is instructive (at [60]: ’those enjoyed by British citizens and companies in relation to their activities in other Member States, as provided for by EU law’). The Court rejected the government’s argument that may be rephrased as a proposition that those EU-derived rights in foreign law (e.g. French law) that UK citizens enjoy are not direct effects of the European Communities Act 1972. In response, the Court concluded that Parliament, when enacting the ECA 1972, must have intended the indirect chain of events leading to UK citizens acquiring those rights in foreign law. The Court characterised those rights as ‘created by Parliament’ (at [66]). But if a right to enter and remain in France, ‘formalistically’ speaking enacted by French legislature, is ‘created by Parliament’ then clearly ‘direct effect on rights’ in the Miller framework does not mean a consequence of acting alone, without involvement of other institutions.

The Miller judgment accepted that any domestic effect of an Article 50 notification will be due to the ECA 1972 (and other statutes) and it included ‘category II’ rights among the rights ‘created by Parliament’ through UK statutes. Importantly, without those statutes, exiting the EU would have no effect on rights in UK law and hence no way to trigger the Proclamations principle. Leaving the EU would not, strictly speaking, mean rescinding rights in domestic law by executive action on international plane alone. EU Treaties are not self-executing in UK law.  The final consequence of an Article 50 notification (leaving the EU) needs to be ‘translated’ into UK law through statutory domestic gateways to have any effect there. In a similar way to new EU regulations.

What is the alternative? If we are to insist that diminishing of rights must be a ’necessary’ or ‘invariable’ consequence of an executive action, notification under Article 50 does not satisfy this test. Article 50 expressly presents as a default option not the automatic lapsing of membership after two years but a new agreement between the exiting state and the remaining member states to be reached before that deadline. It also expressly allows for extension of the period of negotiation. More importantly: outside of the express wording of Article 50, it would be possible for all the member states (including the UK) to decide that the UK is to remain a member of the EU. Note that I am not relying on unilateral revocability of an Article 50 notification (which is available according to many EU law experts) – but on revocability by unanimous consent of all member states. Even if that is not a likely scenario, it falsifies claims of ‘necessity’ and ‘invariability’ of the consequences of an Article 50 notification. Uncertainty is greater than Robert Craig allows while responding to Mark Elliott: notification of a decision to withdraw does not have exiting the EU as its ‘necessary’ consequence. Necessity-if-nothing-changes-and-no-one-does-anything is no necessity.

What would be an example of necessary consequences in a relevant sense? Take Acts of Parliament: they can change the law the very moment they are enacted.  No one, except for Parliament, can stop them in such a situation. And if Parliament legislates to do so, then it is undoing a change already made. Not so with Article 50 notification and its revocation (or unanimous disregard by all EU member states): there would be no change in law to be undone (at least no rights-affecting change).

Maybe what is required is that an executive action is very likely to have as its consequence diminishing of rights, as an Article 50 notification arguably would. But participation in the EU legislative procedure may satisfy this condition and do so not only in cases where unanimity in the Council is required for a legislative measure to pass. Even in the more commonly used qualified majority voting procedure, both the UK’s vote and the UK’s participation in preparation of a proposal may be significant enough to increase appreciably the likelihood of passing an EU measure that happens to diminish rights. In other words, UK government does have a ‘strong voice’ in Europe (it just may be that we are only now finding out what are the domestic legal limits on exercising that voice).

Can EU law-making really trigger the Proclamations principle?

A possible objection may be that all EU rights are permanently at the mercy of the EU and as far as UK constitutional law is concerned: the EU giveth, the EU taketh away. In other words, because s. 2(1) ECA 1972 refers to rights, powers and so on ‘from time to time created or arising by or under the Treaties’, UK law gives EU institutions – and UK government acting within them – a carte blanche on doing whatever with those rights, powers etc. There is perfect symmetry: as many rights the EU can create in UK law, as many it may expunge or diminish. The objection could be summarised in the following way: the rights-protecting mechanisms of UK constitutional law kick in only when EU law is to be removed wholesale.

This sounds somewhat ad hoc. It is also at odds with the approach to statutory interpretation adopted by the High Court in Miller. In my forthcoming paper, I made the argument on how the principle of legality and the principle of the rule of law may limit (but also expand) the scope of s. 2(1) ECA. Nevertheless, I admit that I did not expect the catalogue of rights protected by domestic constitutional principles to be as broad as the High Court said in Miller (especially the so-called ‘category II’ rights in foreign law, see Miller at [57]-[64]).

I suggest that a new picture on interpretation of s. 2(1) ECA emerges from Miller, one of rights-protecting asymmetry. On this view, Parliament that enacted the ECA 1972 ought to be taken to have intended a generous recognition of new rights coming from EU law, but not a (domestically) unlimited power to diminish rights once granted. Also, we should not forget that EU secondary law may not only diminish EU rights, but also rights coming directly from UK law (so more than ‘EU giveth’).

At the very least, it is arguable that s. 2(1) ECA does not constitute a statutory authorisation for UK ministers to commit UK government in the EU Council to any EU measure, no matter how rights-diminishing. If a rights-diminishing measure passes, then perhaps it may still be directly effective in UK law. But that would not change the fact that it would have been unlawful for UK ministers to assent to it. A stronger view would be that at least some rights-diminishing EU measures do not have effect in UK law because they do not fit in the domestic incorporating gateway from s. 2(1) ECA, but I leave this consideration aside (I argue for a version of it in my forthcoming paper).

What is the legal authority for representation of the UK in the Council?

It may be surprising to a contemporary reader, but the issue of the legal basis for representation of the UK in the Council’s legislative functions was a matter of some controversy around the time the UK joined the EEC. Non-legislative procedures aiming to provide some parliamentary scrutiny that Sionaidh Douglas-Scott mentioned were instituted as a response to this problem (‘little short of scandalous’ as Martin Howe QC put it). But are they legally sufficient? Some thought no and arguably Miller revives this concern. For instance, there was a position expressed by minority of the authors of the Second Report from the Select Committee on European Community Secondary Legislation (October 1973, 1972–73, HC 463-I, p. xxxviii):

For the United Kingdom this poses a constitutional and legal paradox. For legislation by the executive is expressly prohibited by law and constitutional practice in the United Kingdom. This power was rejected under the guise of prerogative legislation in the Case of Proclamations (1610) 12 Co. Rep. 74 and in the Bill of Rights 1688 (and Scottish Qaim of Right 1689). United Kingdom Ministers of the Crown participating in E.E.C. Council of Ministers business do so, even from an E.E.C. standpoint, only insofar as they are clothed with United Kingdom constitutional authority. But that very constitutional authority expressly forbids them from legislating without the consent of Parliament. No Act of Parliament has yet given them that authority nor do the Treaty of Accession or the Treaty of Rome touch upon it.

It follows that United Kingdom Ministers cannot constitutionally consent to E.E.C. Council of Ministers secondary legislation having direct effect in this country without the consent of Parliament.

Similar concerns were raised in parliamentary debates (e.g. in 1974 and in 1977).

In principle, setting aside the issue of altering domestic law, it could be that UK ministers exercise prerogative powers when participating in the Council. As the High Court said in Miller (at [30]):

 … as a general rule applicable in normal circumstances, the conduct of international relations and the making and unmaking of treaties on behalf of the United Kingdom are regarded as matters for the Crown in the exercise of its prerogative powers.

But the core point of Miller is that prerogative powers will not do when alteration of rights and duties given effect in domestic law is at stake. If there is no prerogative power to act in the EU Council with effect of diminishing rights, then the question remains whether government has sufficient statutory authority for that.

Here I come back to the point I already made on proper interpretation of s. 2(1) ECA 1972. As was noted in parliamentary debates from the 1970s I referred to earlier, s. 2(1) ECA does not contain an express provision giving UK ministers a legal power to participate in the Council’s legislative activity. A maiore ad minus, there is no express statutory authority for them to participate in enacting EU measures that diminish rights coming from EU law or directly from UK law. Why would the lack of such express language be a problem given the seemingly catch-all nature of s. 2(1) ECA? The High Court provided an answer (at [83]-[84]):

… Similarly, the stronger the constitutional principle, the more readily can it be inferred that words used by Parliament were intended to carry a meaning which reflects the principle.

We emphasise this feature of the case because the Secretary of State’s submission, in our view, glossed over an important aspect of this starting point for the interpretation of the ECA 1972 and proceeded to a contention that the onus was on the claimants to point to express language in the statute removing the Crown’s prerogative in relation to the conduct of international relations on behalf of the United Kingdom.

Applied to the issue at hand, it would mean that to infer that s. 2(1) ECA confers on UK ministers a power to vote in the EU Council for rights-diminishing measures, we would expect more express language. In the absence of such language, the intention cannot be inferred from the general words that s. 2(1) ECA does contain.  And that means that UK ministers have neither prerogative nor statutory authority in UK law to assent to rights-diminishing EU measures. When they do so, they act unlawfully in UK law.

Conclusion

In a surprising twist, the High Court brings us back to the view on the constitutional limits of UK government’s participation in European law-making abandoned shortly after the UK’s accession to the EEC. Perhaps that view is correct and the history of the UK’s membership in the EEC/EU has been fraught with executive law-breaking. My point is simple: once we accept the kind of robust legal limits on executive action in the international realm and the kind of interpretation of the European Communities Act 1972 that the High Court relied on in Miller, then it would be ad hoc and unprincipled to then contend that this reasoning applies only to withdrawing from the EU Treaties altogether. An interesting question is how much more of currently uncontroversial executive action is caught by Miller-like arguments. Given the established consensus on lawfulness of ministerial representation of the UK in the EU Council, this argument may perhaps further undermine the correctness of the High Court’s judgment in Miller.

The author thanks Mark Elliott, Tobias Lutzi, Alice Schneider, Ewan Smith, as well as Stephen Tierney and Jeff King for their comments on a draft of this text.

Mikołaj Barczentewicz, University College, University of Oxford (@MBarczentewicz)

(Suggested citation: M. Barczentewicz, ‘Consequences of the High Court’s Reasoning in the Article 50 Judgment: EU Law-making Unlawful’, U.K. Const. L. Blog (18th Nov 2016) (available at https://ukconstitutionallaw.org/))

24 comments on “Mikolaj Barczentewicz: Consequences of the High Court’s Reasoning in the Article 50 Judgment: EU Law-making Unlawful

  1. Sean Feeney
    November 18, 2016

    There may be discussion of some relevance in various editions of Wade and Forsyth (cited by Lord Pannick QC at some point in the transcripts), which are downstairs in the Bodleian stacks.

  2. Cahir
    November 18, 2016

    If I am right that the central hypothesis of this blog post is that the executive may have been acting contrary to the constitution through participation in EU decision-making, I have some follow-up questions, because this topic is interesting (in that, I’m not sure it is a serious topic).

    Firstly, is it not the case that Government participation in the activities of the EU institutions is conducted pursuant not to UK law but to the EU Treaties themselves? And aren’t those duties, obligations and powers effected through the international obligations of the state as a result of signing the Treaty of Rome (and subsequent amending treaties); signing being the exercise of the prerogative power?

    I would also have thought that UK participation in EU decision-making has no effect whatsoever on domestic law; just because the government votes for or against a piece of secondary EU law in the Council doesn’t automatically mean that law will have any impact in the UK legal order – that is the central component of constitutional dualism. The only route by which EU law can be given effect in the UK domestic legal order is through s. 2(1) of the EC Act 1972, or s. 2(2), in which case the law will be applied as UK law.

    I would be interested to know what specific rights originate in UK law but which are diminished by the application of secondary EU law. I was taught to believe that the UK constitution affords negative rights, with the HRA and EC Act providing novelty with positive rights in the domestic order.

  3. Sean Feeney
    November 21, 2016

    The background to whether this is or is not “a serious topic” is given at paragraph 8 of Martin Howe QC’s evidence to the House of Commons European Scrutiny Committee in the 19 January 2011 report The EU Bill: Restrictions on Treaties and Decisions relating to the EU, Fifteenth Report of Session 2010–11, HC 682

    “8. In particular, the general power under Art 352 TFEU (originally Art 235 of the Rome Treaty) to legislate in aid of the objectives of the treaty when the specific legislative treaty bases have not provided the “necessary powers” has always been a law-making power of enormous scope. It has been little short of scandalous that
    ministers were able to exercise this sweeping legislative power without a formal legal requirement for the prior consent of Parliament. It is therefore very much to be welcomed”
    http://www.publications.parliament.uk/pa/cm201011/cmselect/cmeuleg/682/682.pdf

    • Cahir
      November 22, 2016

      I think you make a fine point Sean about Art 352 TFEU, and there is no shortage of academic commentary on the umbrella clause being fairly undemocratic, especially since the Lisbon Reform Treaty widened its scope. Despite its criticisms though, I am not aware of any rule in public international law that would render it unlawful for an international organisation like the EU to possess such a gateway to legislate, and since it is in the Treaties, what rules of EU law would render it illegal? If the suggestion is that UK law could render inapplicable any secondary laws adopted under Art 352, how would supremacy of EU law allow any organ of state the power to do it?

      Maybe if the arguments in this blog post had been directed toward Art 352 criticisms, I would take it seriously, but it suggests that Government actions in the Council are more generally contrary to UK constitutional law.

      • Sean Feeney
        November 22, 2016

        Cahir:

        The obligation under the EU treaties is to co-operate at an EU level.

        The fact is the UK knew EU law was both supreme and mutable before entry into treaty obligations.

        The “topic” is interesting solely in terms of how this obligation whas been technically translated into domestic effect, and how.

        By reduction ad absurdum, the argument under consideration, that UK ministers may be operating illegally at the EU level, is not interesting save in the scenario the UK is in breach of EU obligations.

        However, domestic statute almost certainly can be construed to avoid this “absurd” (in the Pepper v Hart sense) result.

  4. Denis Cooper
    November 21, 2016

    As a layman, just one of the 46.5 million citizens who were invited to vote on the clear question of whether the UK should remain in the EU or leave the EU, I do not feel that I have received justice from the Queen’s High Court of Justice. But then while the court was deeply concerned with the rights of UK citizens as EU citizens it appeared totally unconcerned about any rights of UK citizens as voters in a UK referendum; the idea that we had any right to transparent and fair treatment by the UK authorities did not even enter into its judgment, which in fact relied upon a statement made by Dicey in 1915 to dismiss the referendum as an irrelevance.
    The fact is that before Parliament passed the European Union Referendum Act 2015 it had already legislated to restrict the government’s exercise of prerogative powers with respect to a wide range of decisions to be taken within the EU, most notably through the European Union Act 2011, but although parliamentarians had had multiple opportunities to assert a claim to control the service of an Article 50 notice, arguably over a period of thirteen years since the substance of that article first appeared in the proposed EU Constitution in 2003, they had never done so, and nor did they think or attempt to do so during the passage of the 2015 Act.
    And furthermore the court decided that because a young lady in the House of Commons Library had issued a report in which she stated that the referendum was only advisory it must have been the intention of Parliament that the referendum should be treated as only advisory, even though the government made it clear during the passage of the Bill that it intended to treat the result as binding, the people having the final say, and it would implement whatever the voters decided, including a vote to leave the EU, without any further parliamentary process, and parliamentarians did not voice any objections to that.
    But to be fair it is only a small minority of parliamentarians across both Houses who are now refusing to accept the result of the referendum, despite people outside Parliament trying to egg them on to do just that and the court apparently believing that its role should be to rescue lazy and inattentive politicians from their past error. Most parliamentarians know very well that the referendum was intended to deliver an outcome which would be morally and politically binding even if in strict legal and constitutional terms it could not and would not be binding, they accept that this was made clear by the government during the passage of the Bill and that they had their chances to object then and insist on the government changing its tune on that before we voted, and while they may regret the decision they are not trying to overturn it.

  5. Chris V
    November 21, 2016

    An observation on your statements.

    “The objection could be summarised in the following way: the rights-protecting mechanisms of UK constitutional law kick in only when EU law is to be removed wholesale.
    This sounds somewhat ad hoc. ”

    There is no symmetry to be drawn between the EU institutions, in accordance with their procedures, and with the participation of UK representatives, deciding to withdraw some or all the rights conferred heretofore, which would be given effect to under ECA, and a unilateral withdrawal brought about by serving notice under article 50. One is a multilateral intra-governmental action, the other is a unilateral action bringing about inter-governmental negotiations. The first is giving effect to the treaty by operating in accordance with its institutions and the second is taking an action that would remove those rights contrary to the treaty. Such removal of rights would be prior to any agreements by Parliament.

    Professor Elliot has remarked that in domestic law nothing would change, there would just be nothing for the law to bite on. One does feel a bit of reality ought to enter the discussion.

    Your piece has intrigued me very much and I am still pondering. Not sure I yet fully grasp all the arguments

  6. Chris V
    November 22, 2016

    In considering the right of ministers and executive to exercise prerogative powers by voting within the institutions of the EU it surely relevant to consider the purpose of the the ECA. The European Communities Act 1972 is, as its long title states, an Act “to make provision for the enlargement of the European Communities to include the United Kingdom”. The long title of the Act is a permissible aid to interpreting the terms, and object and purpose of the Act. It was known that membership of the EU included membership of institutions with powers to make “laws” that had directly applicable effect and that ministers would be members of such institutions. Any exercise of royal prerogative was therefore authorised by statute. Had it not been, the purpose of membership would have been frustrated or rendered without purpose. It may be unsatisfactory that such exercise was not put on a more formal basis, but a bit late.

    The exercise of royal prerogative to trigger article 50 would achieve the opposite effect to voting within the institutions of the EU. It would frustrate the purpose of the ECA and in doing so would breach the convention on the limits on the use of the royal prerogative.

  7. Denis Cooper
    November 22, 2016

    It all boils down to a claim that Parliament must pass another Act to confirm its intentions when it passed the European Union Referendum Act 2015. However if everybody was convinced that such an Act would pass through both Houses speedily, more or less as a formality, then nobody would have even bothered to start these cases, which in reality have nothing to do with our rights or the law or the constitution or the sovereignty of Parliament and everything to with a hope that our withdrawal from the EU can be prevented despite the people voting for it.
    Baroness Wheatcroft is one of those who has made this perfectly clear:
    http://www.prospectmagazine.co.uk/opinions/a-rebellion-in-the-lords-brexit-article-50-referendum
    “With no constituents to fear and a conviction that remaining in the EU and helping it reform would be a much better option than plunging into the unknown, they would defy the whip, which cannot inflict the same pain as it does in the Commons. The Lords would be resoundingly “not content” and could remain a blockage to the legislation for up to one year.
    Much might change in that time. The EU might even concede that the UK was not the only country which needed to see some curbs on free movement and make changes. Then their lordships might argue that there was a good reason to call that second referendum and hope for a very different result.”

    • Chris V
      November 23, 2016

      Don’t know if you’re following the comments but if you are: the legal arguments and the political arguments are quite separate. All the court said was that only Parliament had power to trigger article 50. It could not be done by the government and the way the referendum was phrased was not capable of doing this. By all means pressure Parliament on article 50, though most seem to be in no doubt that it must be triggered. But don’t continue under the misapprehension, created by the popular press, that somehow the courts are preventing article 50 being triggered. The court was simply saying: on such an important matter it should be our sovereign Parliament that takes the action not the government. This is based on a rule that the government cannot remove rights under statute or common law. In this case it’s the European Community Act 1972.

      • Denis Cooper
        November 23, 2016

        Very clearly they are not separate, because the legal arguments have only arisen from a political desire by some to prevent our withdrawal from the EU. Baroness Wheatcroft made that perfectly clear, and so have others. If somebody feels sick at the outcome of the referendum, and agrees to pursue a legal case in the hope of preventing it being implemented, then that is a political motivation rather than any scruples about strictly observing the law. I ask again: would anybody have decided to start these cases if everybody had been certain that it would be a pure formality for Parliament to speed through another Act to clarify its intentions when it passed the 2015 Act ordering and arranging the referendum? And the answer is no, they would have accepted that even though it was not stated on the face of the Act the government had made it clear that if the vote was for the UK to leave the UK then it would go ahead and inform the EU that the UK intended to leave the EU. And that is what the court should have decided, that the consent of Parliament was indeed required but that consent had already been given when it passed the 2015 Act with many hours of debate in both Houses but without parliamentarians at any point raising any objection to the government’s plan let alone insisting that it, not the people, must have the final say.

  8. Sean Feeney
    November 23, 2016

    The scope of Acts can be different for a decision to withdraw and a “decision” to comply with the international law obligation to notify.

    The Parliamentary authority for the power/duty for these two distinct decisions can be sourced in different Acts or indeed in the prerogative.

    Politics is relevant and highly material according to the appellant in Miller.

    The appellant’s case relies on Robinson v Secretary of State for Northern Ireland [2002] UKHL 32 (and not Pepper v Hart [1993] AC 593, which is cited at [17] of Robinson), a case where the “political situation” was relevant to statutory construction.

    See, for example, the speech of lord Hoffman at [33]

    “According to established principles of interpretation, the Act must be construed against the background of the political situation in Northern Ireland and the principles laid down by the Belfast Agreement for a new start.”
    http://www.bailii.org/uk/cases/UKHL/2002/32.html

    The morals are: follow the litigation papers first, and normative arguments can be the base of a legal argument.

  9. Chris V
    November 24, 2016

    Some of the above comments suggest that the battle is between Parliament and the government, with government cast in the role of defender of “the people’s will”. This is an odd reversal of the 17th century position. It is a caricature of a complex position and devalues and oversimplifies the reality which is that withdrawal is not straightforward. The post Brexit position has to be negotiated and the referendum with its binary choice offered no clue as to what that should be. Assertions that it meant this or that only demonstrate the lack of a clear destination.
    We should not, therefore, criticise MPs in Parliament for wanting a say in the plans for the future, they are, after all our elected representatives and include, let’s not forget, the government. The smaller number of MPs in the government have no monopoly of wisdom or right to claim to represent we the people.

    And as for those very few who have expressed a wish to prevent what they consider an unwise move: well we live in a democracy in which contrary opinions are allowed. There is no serious possibility that these few will frustrate the decision to leave.

    The motivation of the claimants can be analysed and approved or damned as you wish. We are beyond that now. We seem even to be beyond where matters stood when the claim was first made. The government has conceded that it will debate the issues before triggering article 50, if that is the outcome. The issue is this: does Parliament get to express a view about a negotiation that it, ultimately, will be called upon to approve. Whether triggering is by royal prerogative or legislation is procedural. The great constitutional crisis is between the government and parliament. Both claim to speak for the people.

    • Denis Cooper
      November 25, 2016

      Obviously this is not a continuation of the historical contest between Parliament and the Crown, even though that is how some complainants have hypocritically chosen to misrepresent it. If that was the case we would have parliamentarians spontaneously moving resolutions against the government serving the Article 50 notice, and maybe the government stubbornly refusing to abide by the will of the House or Houses. Instead we have pro-EU people outside Parliament and a few members of Parliament, mostly unelected members, trying to egg on the bulk of parliamentarians to act to prevent our withdrawal from the EU.
      As I’ve said before the substance of Article 50 TEU first appeared as Article I-59 in the draft EU Constitution back in 2003. So arguably parliamentarians have had thirteen years during which to consider whether they should control the service of the notice, and multiple opportunities to assert a claim to do so, on and off from then right up to March 2nd 2016 when the Lords approved the statutory instrument to set the date of the referendum without even bothering with a division:
      https://hansard.digiminster.com/Lords/2016-03-02/debates/16030273000445/EuropeanUnionReferendum(DateOfReferendumEtc)Regulations2016
      This was despite it being openly recognised in the debate that if the referendum vote was to leave then the government would go ahead and put in the notice, for example the Labour peer Baroness Smith at Column 923:
      “What is clear – and those of us campaigning to remain have a duty to point this out – is that a vote to leave is exactly what it says on the tin. It will trigger the process towards Article 50, which provides for exit, and it will do so straightaway-no ifs, no buts, as the Prime Minister is known to say.”
      In fact even after then MPs or peers could still have insisted that the government must give an assurance that it would not serve the Article 50 notice without first getting further parliamentary approval of some kind.
      Just how this current conflict is best characterised is not clear, but it is definitely not “Crown v Parliament”. It is more like “Some parliamentarians v the people”, with the government taking the side of the people and the High Court now taking the opposite side.

      • Chris V
        November 29, 2016

        Without prolonging a debate where, I am pretty sure we will never agree, I just say that I would agree with your view as: some Parliamentarians against the people if I thought that “some” meant a majority. Some 48% voting in the referendum wanted to remain and their views must be considered. The court judgment cannot be caricatured as a vote to overturn the referendum decision of the people. It simply said Parliament and not the government had power to trigger article 50. It was a decision against an over powerful executive. The fact it was seeking to exercise that prerogative following a referendum is, in some senses, by the by.

  10. Denis Cooper
    November 30, 2016

    Well, at one point the Lord Chief Justice actually said to the lead counsel for the claimants:

    “You have to say that because otherwise you fall into the argument that you are trying to go back on the referendum.”

    Page 64 here on October 18th:

    https://www.judiciary.gov.uk/wp-content/uploads/2016/10/brexit181016-all-day.pdf

    Which is the truth of the matter.

    • Chris V
      November 30, 2016

      What counsel argued and what the court ruled are not the same. What truth are you after? The judgment is what matters. The motivation of the claimants are not of relevance. This is not a court of equity.

      • Denis Cooper
        December 1, 2016

        It’s still a court of justice, and justice has not been done in this case.

      • Sean Feeney
        December 1, 2016

        The transcripts were incorporated into the judgment at [73]; and that is why “It is therefore possible to summarise the arguments briefly.”

        The submissions of Counsel, and the Court’s response, are implicitly part of the Divisional Court’s reasoning.

  11. Sean Feeney
    November 30, 2016

    The argument that the 2015 Act provided for the UK’s decision to leave the EU is central to the written submissions of Lawyers for Britain:

    http://www.lawyersforbritain.org/files/lawyers-for-britain-supreme-court-submissions.pdf

    • Chris V
      December 1, 2016

      I read that. Interesting. Is anyone arguing that Parliament should not trigger article 50? Is the referendum and its result a factor in determining if royal prerogative is available? If there had been no referendum would the royal prerogative be available? On what precedent does one argue that an “advisory” referendum brings into play royal prerogative. (Please don’t take the argument down the legally binding route. The referendum is, I accept, politically binding but needs clarification on what the UK hopes will be the basis of future relations with the EU).

      If the argument is that the people have spoken, and don’t mean that in any sarcastic way, and that this is an instruction to the government, what is the precedent for that? Further, how does it address the open nature of the decision to leave? If that is a matter for Parliament then is not inseparably linked to triggering article 50?

      • Sean Feeney
        December 2, 2016

        Your questions are answered in the Lawyers for Britain case, which you say you have read.

        If you disagree with the novel answers given there, which markedly differ from your unnovel assumptions: fine.

        The Supreme Court will now be the arbiter.

        In the meantime, I suggest you read, or reread, Jackson & Ors v. Her Majesty’s Attorney General [2005] UKHL 56 ( [2006] 1 AC 262]):

        http://www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKHL/2005/56.html&query=(title:(+jackson+))

        Extension of the Jackson reasoning on naïve conceptions of Parliamentary sovereignty is likely to be crucial to devolution and referendum matters (including the “legally binding route” for referendum).

  12. Chris V
    December 1, 2016

    A line of thinking that has not, I think been mentioned, is the meaning of the Great Repeal Bill for the arguments advanced. The need for the GRB is proof:

    1. That there were no statutes passed, that the ECA was a conduit.
    2. There have been rights and obligations available to UK citizens that will need to be replaced by means of the GRB.
    3. That rights and obligations were recognised by the courts and accorded recognition in common law and these will be lost.

    Point 1 seems to support the government’s position. The other two seem to support the claimants.

    Anybody else have views on the implications of the need for a GRB for the arguments advanced?

  13. Chris V
    December 2, 2016

    Re Sean Feeney’s comment: The submissions of Counsel, and the Court’s response, are implicitly part of the Divisional Court’s reasoning.

    I thought judgments were divided into ratio decidendi and obiter dicta. Where judgment is against counsel then isn’t the submission rejected?

    My point was that any political motivation of either party was not relevant to the legal judgment, except in the broadest sense that this is a matter of constitutional law and so is based on political principles.

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