Yesterday the London High Court provided a great example of the successful operation of our democracy when three of the country’s leading judges ruled that any notice required under Article 50 of the Lisbon Treaty, which effectively and irrevocably triggers the UK’s exit from the EU, can only be served with the sanction of Parliament. It is not an Executive action that can be undertaken by the Prime Minister under the historic doctrine of the Royal Prerogative.
How does the UK constitution work?
The UK Constitution is a magnificent thing. It is not written down in any one document, it is to be found in certain statutes, in some fundamental rules of law recognised by Parliament and the Courts and in certain well established rules or customs governing the role of state decision making authorities and the extent of their respective powers.
The three great pillars of the constitution are:
The Executive - sometimes referred to as the “Crown”. The role of the Crown is now performed by the Prime Minister and the Government. It does not make laws. It implements them and in modern times sets the policies that lead to laws being proposed to Parliament;
Parliament or more properly “The Queen in Parliament”. This is the supreme law making body in the UK. Acts of Parliament passed by the House of Commons, the House of Lords and signed by The Queen are supreme. They cannot be overruled by anything other than another Act of Parliament. Everyone is bound by Acts of Parliament; and
The Judiciary - whose job is to construe the law of the land, whether it be civil, criminal or constitutional.
Whilst there are technical overlaps between these three institutions (The Lord Chancellor was until recently often a member of all three and the Queen is represented in the Executive and in Parliament) a fundamental principle of a successful Parliamentary democracy like ours is that each institution is independent of the others and guards that independence to ensure that the country is ruled with the correct checks and balances to protect the fundamental rights and privileges of the citizens.
Transfer of power
Historically, the law making role of the country lay in the Crown but since (at least) the signing of Magna Carta just over 800 years ago this role gradually has been transferred to Parliament. One vestige of the Monarch’s legal authority can be found in the Royal Prerogative. This is a collection of powers still residing with the Crown, the most relevant one being the Crown’s control over the country’s international relations and its ability to make or break treaties with other sovereign states. A fundamental limitation on the extent of the Royal Prerogative, which stems from the supremacy of Parliament to make laws, is that it cannot be used, to alter the law or confer rights upon individuals or deprive them of rights which they enjoy. Put another way, once an issue that might formerly have come under the purview of the Royal Prerogative, has become the subject of an Act of Parliament, the Royal Prerogative can no longer apply as that would offend the concept of Parliamentary supremacy.
Sovereignty principle
In the High Court the case argued against the government was a simple one. Since the signing of the European Communities Act 1972 (“ECA”), there has been 44 years of legislation passed both in Parliament and in the EU (which has direct effect in the UK by virtue of the ECA) which derives from the UK’s membership of the EU. This legislation is only relevant and effective for so long as the country remains in the EU. As a result only Parliament can initiate steps that would undo that legislation. The constitutional principle of the sovereignty of Parliament prevents the Crown from undoing the last 44 year’s work of Parliament (which would be the effect of the government serving the Article 50 Notice). This approach has been confirmed in cases beginning with The Case of Proclamations (1610) which established that “the King by his proclamation or other ways cannot change any part of the common law, or statute law, or customs of the realm” and that “the King hath no prerogative, but that which the law of the land allows him” and the subsequent Bill of Rights (1689).
Royal Prerogative
The government’s central contention was that Parliament must have intended when it passed the ECA that the Crown would retain the Prerogative power to effect a withdrawal from the EU and therefore to choose whether EU law would continue to have effect in the domestic law of the UK. Effectively, the government was said that the ECA and all subsequent EU laws applicable to the UK have only taken effect because the government in 1972 signed a treaty binding the UK to the EU. As a result, it was always been known and understood that the applicability of EU law in the UK was contingent on the continued existence of the treaty which was a matter always for the Crown to control by the exercise of the Royal Prerogative.
No value
In its judgment the High Court convincingly rejected the government’s case. It said that the argument put forward by the government “gave no value to the usual constitutional principle that unless Parliament legislates to the contrary, the Crown should not have power to vary the law of the land by the exercise of its prerogative powers.” The High Court said that the government was ignoring two fundamental constitutional principles: first that the Crown cannot use its power to alter Acts of Parliament and second that the exercise of the Royal Prerogative only operates on the international plane. The High Court also accepted the claimant’s case that the Crown cannot by its prerogative powers alter the domestic law of the United Kingdom and modify rights acquired in domestic law and under the ECA or the other legal effects of the ECA.
Untenable
Finally, although not a matter apparently before the Court to decide, it commented that any argument to the effect that the European Union Referendum Act of 2015 conferred on the government a statutory power to give notice under Article 50 would be untenable. This could only have been the case if Parliament (applying the principle of Parliamentary sovereignty) had made this clear in the Referendum Act. There was nothing in the Act to suggest that the referendum should be any different from any other (once again applying general principles of Parliamentary Sovereignty) being advisory in its effect.
Clinical approach
As you would expect from such an eminent panel of judges, the judgment is an excellent analysis of our constitutional law. It makes clear that the court does not question the importance of the referendum as a political event but says that the significance of this will have to be assessed and taken into account elsewhere. The judgment steers clear of any consideration of the constitutional issues in any political and social/economic context. Instead, it adopts a clinical, focussed approach to the legal issues raised.
Refocus
The judgment is a convincing decision against the government. It is difficult to see how, on the issues presented to it, the Court could have come to any other conclusion. The High Court did not have a good word to say about the government’s approach to its case. Bearing in mind the recent statements made by ministers about their confidence in victory in this case, the decision is an embarrassing one for the government and its lawyers. If the government decides to appeal this decision to the Supreme Court, it is going to have to up its game convincingly and refocus its case perhaps to introduce the broader issues referred to in this article. It might also want to raise issues concerning the legitimate expectation created by politicians of all sides during the Referendum that the result would be implemented. The Supreme Court should be more aware of the inevitable constitutional crisis that would be created should it follow the High Court. The nub of that crisis stems from the obvious conflict between government saying that it must be free to serve the Article 50 notice without disclosing its negotiating tactics with the EU and the Court saying that the government can only serve such notice if Parliament has given it the go ahead.
So what happens next?
The first thing to say is that the politicians (or indeed any one) should not criticise the judges for their decision. It is not uncommon for the loser in litigation to do that. The judges in this case have been faultless. Indeed, they should be thanked for having produced such an excellent and succinct judgement so promptly. Judges have an important role to play in our very special constitution. They are often called on to make very tough decisions, and in constitutional terms, this is probably one of the toughest, bearing in mind the strength of feelings on both sides of the argument. They have done their job and done it well.
The government will undoubtedly appeal and the case will go directly to the Supreme Court “leap frogging” the Court of Appeal (which is why three Court of Appeal judges sat in the High Court to hear the first round of the case). It is likely that the Supreme Court will hear the case either in December this year or January next.
What can the government do?
How can the government turn around this crushing defeat? That is a tough task. There has been much academic comment on this issue and leading constitutional commentators have put forward interesting conflicting arguments. The government’s lawyers will be well advised to consult widely to explore alternative and new, innovative, arguments.
One issue that may arise is whether an Article 50 Notice is revocable. In the High Court the government accepted that once given an Article 50 Notice cannot be withdrawn. It relied on this to assert that Article 50 gave the government the power to undo all the effects of membership of the EU as it had always been the intention of Parliament to leave with the government the decision to join and to leave the EU. However, the claimants also used the irrevocability of Article 50 (and to much greater effect) to establish its contention that it was the service of this notice that would inevitably cause changes to the legislation and, as such, it was this act that undermined the sovereignty of Parliament. However, if, as many believe (including Lord Kerr the Scottish peer who was reported as having written Article 50) that a government can unilaterally withdraw its Article 50 Notice at any time up to the expiry of the 2 year period given in Article 50 to conclude negotiations, then serving the Article 50 notice would not automatically result in the UK leaving the EU (thereby changing 44 years of legislation and undermining the supremacy of Parliament).
Can Article 50 be unilaterally revoked?
A difficulty with this argument is that Article 50 itself is not clear on whether it can be unilaterally revoked. It does not refer to such a possibility within the Article. However, a “sensible/commercial” approach would be that a country should be allowed to change its mind during that two year period to allow for changes in national governments or the country not liking the terms proposed by the EU. That is, it could not have been the intention of Article 50 to force a country that had served an Article 50 notice to exit the EU despite having subsequently changed its mind. That would force the country concerned to reapply to join (and in the UK’s case, on potentially very different terms). Ironically, the question of the status of Article 50 is not one to be decided by the UK Court, it is a matter of European Law to be determined by the Court of Justice of the European Union (CJEU). If the Supreme Court considers that the effect of an Article 50 notice is crucial to determining whether exercising Article 50 offends the principle of Parliamentary sovereignty, any final decision of the Supreme Court would have to await the outcome of a consideration of the issue by the CJEU.
Uncertainty looms
It is to be expected that the discussions in the Supreme Court will may range more widely than that in the High Court. The Justices will have regard to the fact that their decision could throw the UK into years of constitutional and therefore economic uncertainty and turmoil. A general election would be almost an inevitable result if the Supreme Court follows the decision of the High Court. This is because (based on positions adopted by MPs during the referendum) the presently constituted House of Commons would not provide the backing required by the Government to trigger Article 50 (that is assuming Members of Parliament vote in accordance with their conscience, which by tradition, they are required to do). There could be years of uncertainty as the political fallout takes its course. Uncertainty is bad for business and the UK economy is bound to be adversely affected. If the Supreme Court does not follow the High Court and allows the government to serve the Article 50 Notice, then the dissolution of the United Kingdom with Scotland pursuing independence with even greater vigour is a real probability.
To what extent are these matters to which the Supreme Court Justices should have regard? In theory, the Justices are lawyers (and were appointed for their legal prowess and (unlike in the US) without reference to their social/political/and economic affiliations). They must therefore focus on deciding the law. However, they do play an important role in the constitution and as such will undoubtedly have regard to such broader issues.
No appeal
So the stage is now set for an interesting debate in the Supreme Court which for the first time in living memory will comprise the full panel of 11 Supreme Court Justices. The stakes cannot be higher and the decision of the Supreme Court will be the final word on the matter. There is no appeal from the Supreme Court to the CJEU on the issue of whether triggering article 50 is within the power of the UK government or Parliament. That is a question of the interpretation of the UK constitution over which the Supreme Court has the final say.
Michael Madden is the head of litigation at US law firm Winston & Strawn.
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