Brexit in the Courts

The arguments for, and against, the legal challenge to the government’s power to trigger the process of the United Kingdom withdrawing from the EU without statutory authorisation are now in the public domain. My view is that the issue is a straightforward one of statutory interpretation, and the government’s detailed ground of resistance are particularly bad in making an easy issue appear complex and difficult.

 

Professor Mark Elliot has set out in detail a critique of the government’s case. Here I briefly summarise for a layperson the essence of what the government’s lawyers have got wrong.

 

Having a Power and Reviewing its Exercise

 

The central problem with the government’s case as presented is that it confuses the questions of whether (1) the government has the power to withdraw from the EU, and (2) the justiciability of the decision to exercise that power. This case concerns (1), not (2). Indeed, as the government has not as yet sought to exercise that power, any litigation on question (2) would be premature.

 

The central objection to the government alone being able to withdraw from the EU is that they would be doing so under the “Royal Prerogative” in a way that would overturn the European Communities Act 1972. As every first year student of constitutional law learns, the Royal Prerogative is , in Lord Bingham’s words, a “relic of a past age.” Can it really be the case that this anachronistic, idiosyncratic, undemocratic leftover could be used to overturn an Act of Parliament?

 

The straightforward answer to this question is that the exercise of the power under Art 50 is not being used to overturn or invalidate the European Communities Act. Art 50 is part of EU law just as much as any other article. Section 2 of the European Communities Act  incorporates into UK domestic law the EU law applicable to the UK “from time to time”. If EU law by its terms ceases to be applicable to the UK, it ceases to be incorporated into UK law. Once two years have elapsed (if not extended) following notice under Article 50, EU law by its own terms ceases to apply to the United Kingdom. This notice can only be given by the government: Parliament is not an actor in international law.This is the result required by the European Communites Act itself, which would be the instrument by which EU law ceases to be incorporated. The Act is not being overruled but given effect to.

 

The Act that brought the United Kingdom into the European Economic Community, will also cause it to leave the European Union.

 

The relevant actors under international law for entering into treaties and exercising powers under them are necessarily governments. This is true of the UK as much as for any other country. There is nothing peculiar, idiosyncratic or archaic about who acts for the United Kingdom in international law: it is the government. However, if the UK government has a particular legal power, the question then arises as to whether the decision to exercise it is reviewable by a domestic court.

 

Courts will not overturn a government’s decision simply because the judge thinks it is the wrong one. The law has given the government the decision to make, not the judge, and the judge will often be in a worse position than the government to make it not having the relevant competence to do so. But this does not mean that government decisions are not subject to any oversight whatsoever. If, for example, the government had decided to invoke Article 50 for wholly arbitrary reasons, because the Prime Minister of the day objected to the colour of Angela Merkel’s hair, would that be reviewable by the courts? It is at least arguable that in such extreme circumstances it should be, even though it concerns a matter of foreign policy, just as other exercises of prerogative power are.

 

The legal effect of the referendum result is to close down any such argument. It is impossible to argue that if the government has the power to exercise Art 50 without further statutory authorisation that it would then be irrational to do so. I think it would be wrong, but that is an entirely different order of question.

 

It is therefore to say the least odd that the government’s case focuses on the second question of justiciability of the (as yet unmade) decision. It may well be that Brexit “is a matter of the highest policy, a polycentric decision based upon a multitude of domestic and foreign policy and political concerns for which the expertise of Ministers and their officials are particularly well suited and the Courts ill-suited.” But so what? That isn’t the issue.

 

 

 

 

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8 thoughts on “Brexit in the Courts

  1. I think I am starting to understand your argument. The from ‘time to time’ argument that Elliott makes has some merit for rights which bite through s 2(1) ECA because it is arguable (just) that it could be interpreted to mean only those rights that remain even after the Treaties are nixed (which would be far fewer). But it does not mean ALL rights would go. Some rights are there via separate Acts of Parliament. The European Parliamentary Elections Act 2002 for example (cited by Barber et al in their blog). Those rights are vested rights in British citizens.

    If A50 is triggered, the right to vote for an MEP will inexorably be lost in domestic law. It is irrelevant that the end of the Treaties means that those rights have also disappeared ‘in EU law’ because we are talking about UK statute here which suddenly is disregarded because there can be no election to the European Parliament even though the Act mandates that to happen. Your position is that a unilateral executive prerogative act can result in an Act of Parliament being disregarded (no election would take place).

    You could argue that parliament would likely repeal the act on exit. That is no answer. The court cannot refuse a declaration because of the possibility that parliament may legislate to fix the very problem that the declaration seeks to highlight. All it takes is ONE right, vested in us as citizens by an unrepealed Act of Parliament which is taken away by the inexorable (even if extended) consequence of triggering A50 which is exit and the declaration must be granted.

    You can go on until you are blue in the face that the validity of the Act is “conditional” on membership and those rights fall away if we withdraw from the treaties but that does not change the UK domestic law rule from Laker Airways that the executive cannot “by a sidewind” (Denning obv) “deprive [Laker] of the protection which the statute affords them”. The statute vests a right to vote. By your argument, the Crown can take that away. The position is unsustainable.

    • Please can I clarify exactly what rights are conferred by the European Parliamentary Elections Act 2002. It seems clear to me that the Act confers the right for UK electors to choose (by voting) those persons who they wish to represent them in the European Parliament. This right will survive as long as the Act remains in force – it would survive the triggering of A50 and indeed our exit from the EU. In fact it would survive the abolition of the European Parliament, were that to occur. However I cannot see that it confers any right for the duly elected MEPs to take their seats in the European Parliament, and it is this right which would be lost on Brexit.
      We need to distinguish between the right to representation and the right to choose (by voting) who the representatives are. In this context it is helpful to remember that the European Parliament was not an elected body before 1979. The right to representation in the Parliament and the right to nominate representatives by voting are thus demonstrably separate rights. As far as I can see it is the latter – and the latter only – which is conferred by the 2002 Act.

  2. There are in my view two problems with that argument. 1. The idea that elections would be held after we have exited is unsustainable. So absent a new Act overturning the 2002 Act then triggering article 50 would result in the 2002 act being disregarded because of a Crown prerogative. No sensible person thinks there would be elections held for a parliament we couldn’t send MEPs to… 2. Even if you had a point in the fine distinction you draw (which I don’t think you do) there are LOADS of other examples no less problematic. Some are listed in the grounds of claim of the lead claimant which you can get from the RCJ for a small fee. The 2002 example is just the most dramatic one.

    • 1.I’m not sure what you mean by the Act being “disregarded”. I agree that post-Brexit the provisions of the Act are unlikely to be invoked again as we would almost certainly have no further elections. But does that mean the rights conferred by the Act would cease to exist? Are the rights contingent on the likelihood of their subsequent exercise? If not then it seems that my point stands, namely that A50 does not, per se, nullify the rights conferred by the Act.

      2. I don’t see how the existence or otherwise of other problematic cases bears on my argument in this particular case,. However I shall follow your suggestion and obtain the grounds of the lead claimant.

      • 1. Interesting idea that you can have a right but you can’t exercise it. Plato v Bentham. More prosaically you need to read Laker Airways again. They retained the right to land in the UK but the govt used treaty powers to remove USA landing rights. So, if you like, Laker ‘retained’ their rights according to statute by your argument. Denning disagreed. Govt lost. Let me know if you think you can distinguish the A50 scenario from Laker and I’ll be all ears.

        2. I wouldn’t bother. It takes up to 10 working days and by that time the hearing will take place and Joshua Rosenburg said today that he thinks the arguments will be released at our just before the hearing.

  3. The distinction between Laker and the A50/EPEA 2002 scenario is that in Laker there was a single right – the right to operate the service between the UK and the USA (you don’t have separate licenses/designations for landing in the two different countries, it’s a single entity). Both the government’s designation under the Bermuda Agreement and the licence under the CA Act 1971 impinged on this single right. There was thus no right which could have survived the use of the prerogative.
    In the current case we have two rights – (1) that of representation in the European Parliament and (2) that of electing those representatives in the way set out in the 2002 Act. I believe you have expressed scepticism as to whether these rights are indeed distinct however I think the situation pre-1979 demonstrates that this is indeed the case.
    I maintain that the 2002 Act – and the act only – grants no more than (2) and the Treaties – and the Treaties only – grant no more than (1). Thus (2) would in law survive the removal of (1) – I leave philosophical musings on the matter to those who are so inclined. Thus the use of the prerogative in triggering A50 would not overturn rights conferred by an Act of Parliament.

  4. Pingback: Robert Craig: Report of Proceedings: Miller v Secretary of State for Exiting the European Union | UK Constitutional Law Association

  5. The defence only need any one of the statutes under consideration to be readable with the withdrawal right recognised by Article 50. This domestic statutory construction is arguably mandated if notification is read as an obligation under international law readable into domestic statute.

    The absurdity at the heart of the claimants’ cases is that Parliament ratified the Lisbon treaty, including its lex specialis withdrawal procedure, but intentionally failed to incorporate the withdrawal right and particularly the notification obligation. The absurdity is the right to withdraw is recognised internationally but, on some of the parties’ cases, has never been incorporated into domestic law.

    Was the intention of Parliament really to potentially subject the UK to EU infringement proceedings for breaching the notification obligation if a domestic decision to leave is lawfully made?

    The initially paradoxical defence focus on justiciabilty arose from the apparent concession in the Miller skeleton at [53] (published after this blog post which considers the skeleton argument of only one of the interested party’s and that of the defence) that the decision to leave was non-justiciable: “that is not a matter for this (or any) Court”.

    If that was indeed a concession, then Lord Pannick QC resiled from it by adopting the submissions of the other parties at the beginning of the oral hearings.

    The defence was pleaded on the basis that if that the decision to leave is non-justiciable, as apparently conceded by Miller, all the more so for any subsequent notification of that initial non-justiciable decision.

    The defence skeleton conceded justiciability (as they had to) where it involved statutory construction.

    More interestingly, the defence has conceded arguability (the initial application was for permission to bring judicial review) of the Laker principle to the 2015 Act that provided for the referendum at [43] of their skeleton:

    “43. In the present case, by contrast, there is no legislation (either in the form of the ECA, or
    otherwise) which has “fettered” the Government’s ability to use the prerogative to give
    effect to the will of the British people as expressed through the referendum. As explained
    above, no legislation contains any such fetter either expressly, or by necessary
    implication. There is no legislation other than the 2015 Act which purports to regulate
    the process by which the UK may decide to withdraw from the EU. Save in the 2015 Act,
    those matters have not been “directly regulated” so as to come within the principle
    expressed in Laker Airways.”

    Like the Hansard materials relied on by the defence – which clearly evidence that Government proposers clearly stated to Parliament that the “purpose” of the 2015 Bill was to provide for a “decision” – this seems to prepare the way for a fall-back defence to a Pepper v Hart [1993] AC 593] reading of the 2015 Act as the UK’s statutory decision to leave the EU:

    http://www.bailii.org/uk/cases/UKHL/1992/3.html

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