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.
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.
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.