More Brexit in the Courts


“Just so I follow, are you saying then, that if on 2 January 1973 the government had changed its mind about the desirability of the EC treaties and their full scope in that time and sought to go and negotiate with the other member states and said well, let’s remove the right of establishment from the treaties, and they might say yes, and that would modify what the EC obligations were; that the government would in fact by reason of section 2 of the European communities act have been disbarred from seeking to exercise the prerogative in that way, ie by approaching other states to see if this he would agree to a change in the treatise because it would be such a fundamental change within domestic law”

-Sales LJ to Lord Pannick in argument

“I am troubled by this, Lord Pannick”

-Thomas LCJ to Lord Pannick in argument

It is sometimes foolish to read too much into the reaction of the bench to the submissions of counsel. Many lawyers will have stories of cases where they are convinced that the judge is for (or against) them, only to have the decision handed down give the opposite result.

However, the above exchange (at pp 108-) towards the end of Lord Pannick’s submissions in the Article 50 Brexit litigation on my reading indicates that the government is going to win.

As will be recalled, section 2 of the European Communites Act incorporates into UK domestic law all “rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties”. The point of Sales LJ’s question is what happens if some of those rights are eliminated under EU law by agreement between member states. Does that require further legislation to be given effect?

The answer is clearly no.

So what if those rights etc were reduced to almost nothing (leaving, say, just a directive on banana curvature in force)?

Again the answer is no fresh legislation is required.

And is it any different if those rights etc are reduced to nothing, as would be the result of the government invoking article 50, which is itself part of EU law?


18 thoughts on “More Brexit in the Courts

  1. I thought he adequately addressed much the same point made by the defendant later on?
    That though the government had negotiated many amendments to the EU treaty using prerogative e.g. Maastricht, each time the changes had only come into effect following ratification by parliament.

    As the judges then stated:
    “We will proceed to decide case on basis that once triggered, Art 50 is irreversible. Court cannot proceed on an assumption.”

    Surely half way there…?

      • Your conclusion that the government wins seems to be based on the view that Article 50 TEU is “self-executing.” In other words, EU law – as currently incorporated in UK law – contains the seeds of its own demise and Parliament has already accepted that. If that is your submission, I remain to be convinced. Article 50 stipulates the consequences that follow from a member state’s decision to leave the EU and to notify the EU thereof. It has nothing to say about how and by whom the decision should be taken in the departing member state: paragraph 1 merely refers to the fact that the decision shall be taken in accordance with the member state’s constitutional requirements. That decision therefore remains a sovereign decision of that member state, in this case the UK and to be decided by UK constitutional precepts. The decision to leave can in that sense be considered exogenous to the ECA 1972 rather than a self-contained implementation of EU law pursuant to the Act. In that case, adjudicating the legality of that decision does not appear to be merely a straightforward matter of statutory interpretation as you argued on 30 September (“Brexit in the Courts”).

        Furthermore, merely to assert, without considering the specifics of the case, that the Article 50 “notice can only be given by the government: Parliament is not an actor in international law” seems too facile. First, the case is complex precisely because the specific nature of EU law means that actions that in the context of other international agreements produce effects only in international law in this context also produce effects in domestic law that are fundamental constitutional importance. Second, your assertion may be true in a mechanical sense, but as Lord Pannick argued yesterday, “[w]e are concerned with the actual decision to give notification, not who carries it out.” This suggests that the issue at stake is more complex than you appear to think.

        I am surprised that Lord Pannick placed such emphasis on the notification per se. He gave himself some space by stating that there is a close link between the decision to leave and the notification and by associating himself with the submissions of Mr Chambers and Mr Green that “there has not been a lawful decision for the purposes of Article 50(1).” Should he have given this more weight considering that the government appears to argue that the decision was settled (in a legal sense) by the outcome of the referendum?

  2. Is there a legal difference between rights being removed by the Executive and rights being removed by agreement between EU member states?

    Pannick isn’t arguing EU member states cannot remove rights, but that the Executive cannot.

    • In this context no, because the member states have already agreed that all rights of EU members are contingent on the exit route of article 50 not being invoked. Parliament has ratified that.

  3. Agreed. With regard to Lord Pannick ‘s arguments that “What
    Parliament does with its sovereignty is, of course, entirely a matter for Parliament ” Parliament has exercised its sovereignty by enacting the EU referendum Act 2015. This Act ,transferred to the people that power to decide to remain or leave in the EU. When it adopted the EU Referendum Act 2015, the sovereign Parlaiment also made a number of decisions about the way this popular vote ought to be organised. Parliament whilst it transferred its Sovereignty to the people set boundaries for the exercise of this popular sovereignty. Nowhere in the Acy is there a reference to this popular vote being limited in other ways such as Parliament clawing back the power to make the decision. As you said in a previous post, that is if I understood correctly, the case boils down to a matter of statutory interpretation

    • I don’t as a matter of law agree with any of that.

      The 2015 Act is, in legal terms, irrelevant, save that no legal challenge to the exercise of the power under Art 50 could be brought on the basis of irrationality.

      • well we have not been brought up in the same legal system and have a very different understanding of pillars of constitutional theory

  4. The 2015 Act is clearly open to a Pepper V Hart [1993] AC 593 reading that it provided for the UK’s statutory decision to leave the EU.

    Like most commentators, SpinningHugo simply ignores this well-known authority which is binding, unless distinguished, on the Divisional Court.

    At least Lord Pannick QC, unlike SpinningHugo, addressed one limb of the three-part Pepper test in his closing on day three, without citing the relevant authority:

    • Because, of course, I don’t think it is relevant. I don’t think that Act tells us anything about the legality of the government acting under art 50, so Pepper v Hart doesn’t matter.

  5. See Lord Pannick QC’s closing speech at pp.102-3 for his implied partial application of the test in Pepper v Hart:

    “The Attorney also drew specific attention to statements made by ministers in Parliament, your Lordships will recall, statements that the referendum would be acted upon. It was D2, 35 and D2, 36. No need to turn it up. I simply say that the reference to Hansard doesn’t assist. There is no ambiguous provision of the 2015 Act which the court is being asked to interpret, and even if there were, it wouldn’t suffice, because on our analysis, the defendant has to point to an Act of Parliament which clearly authorises the removal of statutory rights.”

    Click to access brexit181016-all-day.pdf

  6. It is the argument of a Wenesbury “irrationality” challenge raised by SpinningHugo, that is “irrelevant”. What is at issue is who has power not whether that power, if it currently exists is being used reasonably (in the Wenesbury sense).

    • Firstly, it’s spelled “Wednesbury” and unless I’m reading SpinningHugo wrong he explicitly said that there [I]*were not*[/I] any grounds to say that the PM activating article 50 would be irrational/unreasonable, as the referendum would provide a clear rationale for doing so. (and an action will only be Wednesbury unreasonable if no reasonable authority could have reached it.)

      Secondly, There is nothing in the text of the 2015 Act I’m aware of that would imply the result of the referendum was to legally compel Parliament or the government to act in any particular way after the referendum, and [i]Pepper V Hart[/I] is only going to be of use to you if there is some sort of ambiguity in the interpretation of the statute in the first place.

  7. The Pepper V Hart jurisdiction allows judges to read legislative purpose ascertained from clear and uncorrected statements by Governments proposers of a Bill into the “text” of a “statute”.

    Daniel Norton, you say “There is nothing in the text of the 2015 Act I’m aware of that would imply the result of the referendum was to legally compel Parliament or the government to act in any particular way after the referendum”.

    Precisely, the “text” of the 2015 Act is silent on whether it is, or is not a statutory “decision”.

    However, Government proposers of the Bill made clear and uncorrected statements that the referendum was intended to be a “decision”.

    Whether there is or is not an “ambiguity” in the 2015 Act is something the Courts will now have to decide given Lord Pannick’s closing submission on this point.

    The 2015 Act says nothing, unlike the Government proposers, either way on whether it provides for a “decision”.

    Ambiguity is only one part of the three-part Pepper v Hart test.

    Ambiguity: “2. Of words or other significant indications: Admitting more than one interpretation, or explanation; of double meaning, or of several possible meanings; equivocal. (The commonest use.)…5. Of things: Wavering or uncertain in direction or tendency; of doubtful or uncertain issue.”

    Unclear:” 1. a. Not clear or distinct; not easy to understand; obscure, dark.”

    Absurd ” 1a. Of a thing: against or without reason or propriety; incongruous, unreasonable, illogical… 3. Causing amusement or derision; ridiculous, silly”… 2. An unreasonable thing, act, or statement; an absurdity. Obs.”

    Raising Wednesbury unreasonableness in relation to a point of statutory construction is simply bad rhetoric, for it remains a straw-man argument however Wednesbury is spelt.

    And whatever SpinningHugo thinks, the litigation parties think that any antecedent decision to leave the EU is “important”.

    They are clearly correct to do so. Not least because “no evidence” before the Court of an antecedent decision to notify could be an attractive ground of appeal, if the Divisional Court finds for the defence, as the Northern Ireland High Court has just done.

    • Um, Hugo hasn’t raised Wednesbury unreasonableness in relation to a point of statutory construction has he? All I saw was a brief aside to the effect that activating article 50 by use of prerogative could not be construed as irrational. I would remind you that the opinion of the person you are arguing with is that the government’s got this case in the bag.

      In any case I really think you’re underestimating how strictly the courts will construe the Pepper v Hart test these days, and any reference to Pepper v Hart these days should also be accompanied by R v Secretary of State for the Environment, Transport and the Regions, ex parte Spath Holme Ltd [2001] 2 AC 696 HL:

      True the court may look at the intentions behind the wording of legislation beyond their strict context within the statute, but I simply don’t see a basis to interpret silence within the Act as to what will happen after a referendum as the activation of any particular treaty or legal process, nor to necessarily equate the use of the word “decision” by ministers as specifically meaning “the sending of notification so as to activate article 50.” I just don’t think it will be seen as the kind of specific, categorical assurance necessary to ascribe a very specific legal effect to the outcome of the referendum.

  8. AD, the reason Lord Pannick QC’s case for Miller places “such emphasis on the notification per se” is given in the last paragraph of the Miller skeleton which states the decision to leave is not a matter for this or any court. That is effectively what the Northern Ireland High Court has now decided on this issue.

    As you state, Lord Pannick QC has adopted the submissions of other parties on the decision to leave.

    You state “the government appears to argue that the decision was settled (in a legal sense) by the outcome of the referendum”.

    That is not currently the Government’s case. Their case is they have power under the Royal Prerogative to decide and a high-policy of implementing the referendum.

  9. The argument I put above appears to be part of a public-interest application to join the Supreme Court appeal by third-party interveners Lawyers for Britain (with whom I am entirely unconnected):

    ‘The referendum was authorised by Parliament to give effect to a clear and unequivocal pledge in the General Election manifesto of the winning party that the people would decide (not merely advise on) the question of our membership of the EU. We believe that the outcome gives rise to a clear and unambiguous constitutional mandate to implement the people’s decision to leave which must be respected by government and Parliament, and reject the suggestion that the referendum was merely “advisory”.’

    For the full press release see:

Leave a Reply

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

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

Google photo

You are commenting using your Google 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 )

Connecting to %s