Leaving the EU and the Convention on Human Rights

Theresa May suggested during the referendum campaign that she supported withdrawal from the European Convention on Human Rights. The immediate prospect of this has receded, the government is busy enough with Brexit, but how this would be done, and the difference from Brexit, is another way of showing why the High Court got the Article 50 decision wrong.

Article 58 of the Convention provides

Denunciation

1. A High Contracting Party may denounce the present Convention only after the expiry of five years from the date on which it became a party to it and after six months’ notice contained in a notification addressed to the Secretary General of the Council of Europe, who shall inform the other High Contracting Parties

Only one state, Greece under the generals in 1969, has ever invoked this provision. The relevant actor for the UK in international law is, as for all states, its government. If the UK government gave such notice, six months later the Convention would cease to apply to the United Kingdom in relation to subsequent acts and we would no longer be within the jurisdiction of the court.

 

What would be the impact in UK domestic law if that were all that were done?

 

Nothing.

 

The Human Rights Act

The Human Rights Act requires UK courts to seek to interpret legislation in a way that s compatible with Convention rights, and makes it unlawful for public bodies to act in a way that is incompatible with them. The relevant rights are set out in Schedule 1 of that Act. The UK’s withdrawal from the Convention would have no impact upon this. The Convention binds signatory states in international law. The rights we have as individuals as a matter of UK domestic law are not contingent upon their continued existence. The Human Rights Act and all the rights incorporated by it  continue to apply until it is repealed. The government cannot, through its prerogative action, overturn our statutory rights. Nowhere in the Human Rights Act is it stated that the applicable rights are dependent upon the UK’s continued accession to the European Convention.

 

If the Human Rights Act were repealed, while the UK remained a signatory to the Convention, the UK would subsequently be found repeatedly in violation of Article 13 (“right to an effective remedy”). The reason that Article is not included in Schedule 1 is that the Human Rights Act itself is what ensures that the UK has an effective remedy for Convention violations before its domestic courts.

 

The European Communities Act

The European Communities Act is quite different. It does not set out what the rights that are created under EU law that are given force are. Rather it incorporates them by reference, and they change (“from time to time”). If therefore EU law ceases to apply to the United Kingdom it ceases to be incorporated by the European Communities Act.

 

The reason why notice under Article 50, and the expiry of 2 years, operates to terminate EU law as incorporated into UK law is because that is what the European Communities Act says. The prerogative is not being used to repeal any statutory rights. There would be no need to repeal the European Communities Act at all.

 

If the European Communities Act were repealed, without notice under Article 50 being given, this would place the UK in violation of international  law: it would have broken what is now the Treaty of the European Union.

 

Fortunately, nobody rational now seems to be suggesting that as a way forward.

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The Daily Mail and the Rule of Law

“The People’s Will Trumps the Rule of Law” is the cry of the fascist. The frontpages of much of today’s British press are a disgrace. That the three serious, dull, middle aged men who decided yesterday’s Brexit decision should be branded “Enemies of the People” by the Daily Mail would be laughable, if the damage to our polity were not so lamentable.

Legal Formalism

What is the kind of reasoning that a judge must use in order to decide a case of great political importance, such as the Article 50 case? The substantive issue was whether it would be better if Parliament had a vote before Article 50 was invoked, and the UK’s departure from the EU became inevitable. On that political question, I think the case for a vote is strong. The referendum was merely advisory. We live in a representative democracy. Decisions of such importance should not be taken by the government alone. I am also I find, somewhat to my surprise, a passionate Remainer. I hope that every opportunity for the issue to be debated and reviewed is explored

The argument I have repeatedly given as to why the government can invoke Article 50 without Parliamentary approval is not of that kind.  It is about the technical interaction of international and domestic law, and the words of section 2 of the European Communities Act. It is, frankly, a bit boring.

One argument against it is that it is formalistic (see here, here and here). Surely, so the thought goes, the judges should base their decision on whether a Parliamentary vote would be a good or bad thing in substance, and not on the dry words and their meaning.

Owen Dixon

I am English, but one of my legal heroes is the great Australian judge Owen Dixon. On taking his oath of office as Chief Justice of the High Court in 1952, Dixon addressed the question of how he, an unelected judge, had the legitimacy to decide the issues of enormous constitutional political importance that commonly arose in the (relatively) young new federal society of Australia. Dixon said

Close adherence to legal reasoning is the only way to maintain the confidence of all parties in federal conflicts. It may be that the Court is thought to be excessively legalistic. I should be sorry to think that it is anything else. There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism.

Dixon was right.

That the government lost the Article 50 case is readily explicable based upon how it was its own lawyers presented its case. I think the result is wrong, but it is not wrong because a group of judicial revolutionaries have abrogated power to themselves.

We are governed by rules, not by men.

How the Government Lost

Today the High Court handed down judgment in the Article 50 litigation, and the court held that the government does not have the prerogative power to give notice under Article 50 of the Treaty of the European Union. Legislation to do so would therefore be required.

I am as certain today as I was back in June that this decision is incorrect. The purpose of this post is to explain how the government managed to lose a case it should have won.

How the case was argued

The government argued, rightly, that the entering into and withdrawal from treaties are acts performed by the government under its prerogative powers.  Prerogative powers may be removed by legislation, but no words in the European Communities Act 1972 or elsewhere did so. As a result, such powers continued and the government could invoke Article 50 without more ado.

[That this was, startlingly, the argument as put, see paragraph 80 of the judgment, Part II and III of the government’s skeleton argument, and the oral argument at various points (eg pp 88).]

The claimants argued that a large number of rights created by United Kingdom statutes, principally the European Communities Act 1972, would be abrogated if the United Kingdom withdrew from the European Union. It is a fundamental principle of our constitution that rights created by Parliament cannot be taken away by the government. Necessarily therefore, the unfettered exercise of prerogative power could not operate without prior legislative approval. The usual unfettered exercise of such prerogative power could no longer obtain.

As presented, the case is easy and obvious: the government loses. The idea that the government possesses the power to abrogate our rights, unless there is an express statutory provision taking away its power to do so, is absurd.

How the case should have been argued

In order to understand the law it is necessary to understand that there are two bodies of law in play. One is the domestic law of the United Kingdom. The other is international law which binds states. EU law, as such, is of the latter kind. It arises by virtue of agreement between the Member States. Such law is given effect into United Kingdom law by s2(1) of the European Communities Act 1972.

So, it is a necessary condition of any such rights within UK domestic law that they exist under EU law. The rights we have under EU law vary overtime. These changes do not require fresh legislation but are given effect by s 2(1) (“from time to time”). The European Communities Act differs from other legislation in that EU law that is incorporated under it overrides any domestic law with which it is in conflict.

Article 50 is part of EU law. All of EU law as it applies to the UK is contingent on Article 50 not being invoked by the UK and the expiry of a two year period. This in turn means that all of EU law as incorporated into UK domestic law is similarly contingent. (Lawyers describe these conditions as being “conditions subsequent”: they cease to apply upon the happening of a future event.)

Once Art 50 is invoked, and two years expire, EU law ceases to apply to the United Kingdom at the international level. The only possible party that could give such notice is the government. It is the only actor in international law. At a domestic law level such rights etc cease to apply because of the European Communities Act. The exercise of the prerogative does not overturn or abrogate the rights created by the European Communities Act. Rather the Act itself states that these rights cease to apply.

The occurrence of a condition bringing a right to an end is not the same as overruling that right.

The Appeal

If the case is properly argued, the government should win any appeal to the Supreme Court. It is astonishing that they have failed to do so so far. (The correct argument is just about discernible in the skeleton, at around paragraphs 36-37.)

One reason I like my anonymity online is that it means that any arguments I make only have the force they themselves have, rather than the authority of who I am (or am not). However, if titles are more impressive than legal arguments I would suggest reading the arguments of Mark Elliott (Professor of Public Law, University of Cambridge), Paul Craig   (Professor of English Law, University of Oxford) and (especially clear) Professor John Finnis , all of whom at greater length make exactly the same argument as I do above.