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.

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32 thoughts on “How the Government Lost

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

    Please do enlighten us, how does the “occurrence of [the] condition” relevant to the case at hand come about? With whom does agency lie?

  2. “….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”

    The problem is that the Court has not accepted the above premise on which you base your argument. It’s view of ECA1972 is that it is a superior, constitutional Act “exempt from casual implied repeal” (88). It is “a statute which introduces EU rights into domestic law” (94) and thereby makes EU law and rights indistinguishable from any other law or rights arising from the actions of the UK Parliament. Thus the Court reaches the somewhat extreme position that even category (ii) rights, despite being set out in the domestic law of other Member States and so not “rights enforceable in the national courts of the UK, [ ] are nonetheless rights of major importance created by [the UK] Parliament” (66). From this starting point all you have to do is add the irrevocability of A50 and the rest (as Prof Mark Elliott tweeted yesterday) follows. Whether A50 is or is not part of UK law becomes irrelevant – the point is that its invocation will result in the loss of rights deemed to have been created by Parliament. Thus the invocation can only be by the body with authority to remove those rights, namely Parliament.

    Like you, Prof Finnis and many others I do not agree that EU law is indistinguishable from UK law. However the Court arrives at a contrary starting point chiefly by its interpretation of ECA 1972 set out in 93. Absent a successful challenge to this starting point I see little prospect of the Supreme Court arriving at a different conclusion.

  3. The correct starting point is Article 50.
    By Article 50(1), the EU recognises under European law a member state’s domestic decision to leave. This domestic decision is necessary to invoke the lex specialist withdrawal procedure of Article 50. And this recognition creates the obligation under EU law to notify the domestic decision under Article 50(2).

    Ordinarily a decision to leave is necessary but insufficient to invoke article 50; notification is ordinarily necessary to provide legal certainty to the EU that a domestic decision to leave is ain accord with the “constitutional requirements” of the member state intending to leave.

    The judgment egregiously failed to make findings of fact on the decision to leave.

    Such findings would have been determinative in any CJEU infringement proceedings, if the Courts are not now part of the decision-making process, that the UK is in breach of its obligation to notify a lawful decision to leave.

    The Supreme Court will reverse the Divisional Court and find no decision was made until its final decision in the case.

    • A startling ‘Miss de Point’. This case was about domestic “constitutional requirements” and the court was at pains to make the point that it was staying well clear of what the decision on whether or not to notify under Art 50 might be.

    • The judgment does deal with the decision/notification issue – see paras 15-17. As far as I’m aware this is not a contested matter and I don’t think anyone is challenging the Court’s view.

  4. I agree the case was wrongly decided.

    The Divisional Court wrongly held at [107] that the 2015 Act was “advisory” on the evidence, extraneous to the statute, of a “a clear briefing paper to parliamentarians”:

    “Further, the 2015 Referendum Act was passed against a background including a clear briefing paper to parliamentarians explaining that the referendum would have advisory effect only. Moreover, Parliament must have appreciated that the referendum was intended only to be advisory as the result of a vote in the referendum in favour of leaving the European Union would inevitably leave for future decision many important questions relating to the legal implementation of withdrawal from the European Union.”

    This Parliamentary evidence fell to be admitted under the well-known three-part test in Pepper v Hart that that the 2015 Act was ambiguous, unclear or a literal reading would lead to an absurd result.

    Placing weight on “a clear briefing paper to parliamentarians” is clearly contrary to the binding authority in the ratio of Pepper that weight should only be given to clear uncorrected statements by Government, or other, proposers of a Bill before Royal Assent.

    The defence relied on such statements by Government proposers in its skeleton and oral argument (which is not evidence).

    These statements confirm that the intended purpose of the Bill was to provide for the UK’s decision to leave the EU.

    The Divisional Court should have ordered specific disclosure of all the Bill’s proceedings in Hansard and invited express Pepper v Hart submissions.

  5. “Absurdity” is one of the tests for a Pepper v Hart reading of a statute.

    The Lisbon Treaty, including Article 50, was ratified by Parliament. Parliament has thus assented to being bound by the obligation to notify a decision ” to withdraw from the Union in accordance with its own constitutional requirements”.

    If the UK has already decided ” to withdraw from the Union in accordance with its own constitutional requirements” then, according to the judgment, the UK has no current lawful power to notify and thus no way to avoid breaching a binding international obligation.

    This is clearly absurd.

    And highly relevant to statutory construction, particularly of the 2015 Act.

  6. “So, it is a necessary condition of any such rights within UK domestic law that they exist under EU law.”

    But they exist within domestic law. Brexit will remove those domestic law rights from UK citizens. That can only be done by an Act of Parliament.
    This got settled in the 1970’s in Laker. The Executive cannot use the prerogative to circumvent rights granted by statute.

    • It is correct that the High Court ruled that EU law and rights exist within domestic law on an equal basis with laws passed by Parliament. However the Court did not say that those rights can only be removed by an Act of Parliament. It just said that they cannot be removed by use of the Royal Prerogative (because the RP does not entitle British ministers to alter domestic law rights). But this leaves room for the government to act by statutory power (rather than the RP), i.e. a power that has been conferred on the executive by Parliament.
      In fact the High Court ruling suggests that such a power must necessarily exist.

      Think about the European Council (the various groups of ministers drawn from Member States). The Council issues Regulations which have the force of law in Member States *without* the need for transposition into domestic law by national parliaments. Thus the Council (including its British member) can directly alter the rights of UK citizens without any involvement of, or reference to, the UK Parliament. By what authority do they do this? From the HC ruling it cannot be by use of the Prerogative, so for it to be lawful (and it’s been happening for 43 years!) there must be a statutory provision that empowers British Ministers to participate in EU processes which directly alter the domestic law rights of UK citizens. This statutory provision must arise in the ECA 1972 (where else could it arise?). But Article 50 is just another EU process which will directly alter the rights of UK citizens. So British ministers ought therefore to have a statutory power to act over Article 50, even though domestic law rights will be altered as a result.
      This argument is not new – for a more detailed, technical explanation of it see here https://ukconstitutionallaw.org/2016/07/08/robert-craig-triggering-article-50-does-not-require-fresh-legislation/

  7. The defence skeleton conceded, correctly, the arguability of the Laker principle to the 2015 Act:

    “”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.”

  8. The problem, and I think it is a fatal problem, with arguing that power to notify is provided for by the 1972 Act is the long title of the Act:

    “An Act to make provision in connection with the enlargement of the European Communities to include the United Kingdom, together with (for certain purposes) the Channel Islands, the Isle of Man and Gibraltar.”

    The long-title seems to me to be determinative evidence that the 1972 Act does not provide for reduction of the EU to exclude the UK.

  9. By contrast, I think the long-title of the 2015 Act does provide some evidence that its purposes provide for withdrawal from the EU:

    “An Act to make provision for the holding of a referendum in the United Kingdom and Gibraltar on whether the United Kingdom should remain a member of the European Union.”

    The hard-edged question of law is whether this is “”An Act to make provision … on whether the United Kingdom should remain a member of the European Union.”

    While I don’t think this long-title evidence is entirely determinative of whether the Act provided for a statutory decision of the UK to leave the EU, I do think the clear uncorrected statements of Government proposers of the Bill conclusively evidence that the intended purpose of the Bill was to provide for a “decision”,

  10. “The exercise of the prerogative does not overturn or abrogate the rights created by the European Communities Act.”

    This is surely the nub of it.

    How could an article 50 notice submitted by the executive under Royal Prerogative abrogate rights enshrined in domestic law ? Answer, it could not. Following submission of article 50, UK citizens would still enjoy, for a period of two years, freedom of movement and the right to vote in European elections. The domestic EU rights would be extinguished by the Great Repeal Act which in this regard would take effect upon the expiration of the article 50 notice.

    The government should prevail in the higher court but they need a new legal team. I hope that is in hand.

  11. “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.”

    Except, surely, that it doesn’t override ss1-3 ECA, which are exempt from the interpretative obligation set out in s2(4). Is it not the case that EU law including Art 50 takes precedence over domestic law *except* for ss1-3 ECA which – as Parliament specifically excluded them from the s2(4) interpretative obligation and therefore surely intended for them, including s2(1) giving effect to EU law, to apply regardless of any provision of EU law to the contrary – take precedence over EU law including Art 50? Art 50 therefore surely cannot be used to frustrate s2(1) ECA.

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

    Where they condition occurs as a direct result of the exercise of the prerogative is the distinction really there? Surely the distinction between “the prerogative ended the rights” and “the prerogative brought about the condition that ended the rights” is entirely false as the latter has the same effect as the former

    Would the argument that treaty withdrawal is a prerogative power that operates in international law despite any effect it may have on rights in domestic law not have the effect that the Government could withdraw us from the Council of Europe/ECHR tomorrow without consulting Parliament? Surely this would be contrary to the intention of HRA which must surely have been to give effect to Convention rights in the UK unless and until Parliament itself decided otherwise. Is it not absurd that the prerogative could be used to destroy rights just because Parliament gave effect to them by incorporating a treaty into domestic law rather than by passing them directly in legislation itself when the intention is surely the same?

    • The difference from the ECHR/HRA position is interesting, and one I may blog about.

      The short answer is the government could withdraw from the ECHR but that this would not alone impact on the HRA and the domestic law position. The two are not joined at the hip in the same way.

      • So yes ECA brings in only rights, powers, etc. arising under the treaties and once the UK’s out the treaties cease to apply under Art 50(3) and so there aren’t any rights, powers, etc. that arise for ECA to give effect to.

        I don’t see the distinction between that and HRA, although I could be reading it wrong. If the government withdrew from ECHR then obviously it would cease to apply to the UK, but this would presumably mean that it no longer has ‘effect … in relation to the United Kingdom’ under the definition of “the Convention” set out s21(1) HRA:

        “‘the Convention’ means the Convention for the Protection of Human Rights and Fundamental Freedoms, agreed by the Council of Europe at Rome on 4th November 1950 *as it has effect for the time being in relation to the United Kingdom*”

        No? Or would Sched 1 somehow operate in its place? I don’t see how it would. Am I just reading this totally wrong?

      • I think you make an excellent point, and I am wrong.

        I had read “for the time being” as being different from “from time to time”, and as meaning “now”. But I can see that your reading is more natural and the position under the HRA should be the same, it falls with the ECHR because of s 21.

        Humiliating to admit error, but I think you are right and I am wrong.

      • So as I see it the logical conclusion of Finnis’s argument against the judgment is that tomorrow, without even informing Parliament, the government could use the prerogative to withdraw from ECHR and render HRA meaningless.

        What is the likelihood that the Supreme Court would agree that this is the constitutionally correct position?

      • I don’t think so. That is the ‘merkel’s hair’ problem I’ve addressed elsewhere. I am sure prerogative powers are reviewable for rationality.

        In this case it clearly is rational because we have had the referendum.

      • *Is* the treaty-making prerogative reviewable on rationality grounds? Lord Roskill in the GCHQ case says no, Court of Appeal in Rees-Mogg also says no.

        In Miller, as far as I can see, the court says that the treaty prerogative isn’t reviewable unless it affects domestic law rights (“The Crown’s prerogative power to conduct international relations is regarded as wide and outside the purview of the courts precisely because the Crown cannot, in ordinary circumstances, alter domestic law by using such power to make or unmake a treaty”) – but in Finnis’s analysis Convention rights don’t exist in domestic law, so withdrawal from ECHR wouldn’t alter domestic law and would be “outside the purview of the courts”

        Miller also approvingly quotes Blackburn v Attorney General via Raynor (Mincing Lane) – “The treaty making power of this country rests not in the courts, but in the Crown; that is, Her Majesty acting upon the advice of her Ministers. When her Ministers negotiate and sign a treaty, even a treaty of such paramount importance as this proposed one, they act on behalf of the country as a whole. They exercise the prerogative of the Crown. Their action in so doing cannot be challenged or questioned in these courts”.

        Going by this the treaty-making prerogative wouldn’t be reviewable on rationality grounds. Maybe if the PM just woke up one morning and decided to do it then it would be so extremely irrational that the courts couldn’t not intervene, but that’s extreme. What about something more plausible – say she got the cabinet together, discussed it, and they agreed? Would withdrawal, leaving HRA meaningless, be reviewable following Finnis’s argument? I don’t think it would be.

        In any case, supposing for a second that it is reviewable, and setting aside for a second the question of whether they’d get a referendum bill through Parliament to do it in the first place, if the government wanted to ditch HRA without having to go through Parliament and held a referendum on withdrawing from ECHR and won – which presumably is what would happen at this point – and then gutted HRA by withdrawing then would that be rational?

      • Lawful, given the clear intention of Parliament to give effect to Convention rights?

        It can’t have been Parliament’s intention to give effect to Convention rights only until the government decides they don’t want to obey them any more

  12. 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”).

    Do you distinguish between changes in rights through EU legislation, and changes in rights through treaty changes? Because s2(1) has nothing to say about Treaty changes – that’s the province of s1(2)&(3). For a Treaty change to affect rights through s2(1), it has to be included in the list of Treaties in s1(2), either by an OiC under s1(3), or by primary legislation (such as the European Union (Amendment) Act which incorporated Lisbon.

      • The short answer is that no new treaty is required. Art 50 is already in the TEU.

        Short, but incomplete. Any *change* (not just *addition*) to the Treaties to which domestic effect is given under s2(1) requires Parliamentary approval under s1(3); or of course primary legislation.

      • There is no change at all. Article 50 is already in the TEU. It requires no change.

        First: the effect (in the fullness of time) of exercising Art 50 is fundamental change on the international law plane: the UK ceases to be a signatory to any of the Treaties defined as such in s1(2). This has the effect that UK citizens cease to be entitled to any of the category (ii) or (iii) rights, irrespective of whether they retain category (i) rights; and it makes these changes to tthe “Treaties” without OiC under s1(3) or statute.

        Second: the “rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties” that are given direct effect by s2(1) are those that “in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom“.

        Where does exercise of Article 50 have effect?

        Third: you rely on Art 50’s status as part of an EU treaty: assuming that you are correct that s2(1) makes it available to the Government without Parliamentary authority, it logically follows that prior to Lisbon, the prerogative couldn’t have been used to withdraw from the Treaties?

  13. The domestic EU rights would be extinguished by the Great Repeal Act which in this regard would take effect upon the expiration of the article 50 notice.

    And if the Great Repeal Act doesn’t pass?

    • If the Great Refirm Act did not pass ECA 1972 wound remain on the statute book. It would no longer enshrine any EU rights however. This is because ECA 1972 contains TEU which contains Article 50. The triggering of Article 50 and the expiration thereof would be findings of fact in any proceedings.

  14. What about the nexus between domestic law and Article 50?

    I am in agreement that following the end of the two year process EU law itself would determine that it did not apply to the UK.

    The missing link here, however, is that the 50(2) notification can only be made when the UK has followed its own “constitutional requirements”. If, as part of those constitutional requirements, the Government would not be able take away domestic law rights which are given their material content by the UK’s membership of the EU, then it would follow that one of the UK’s own “constitutional requirements” of domestic law was an Act of Parliament, and failure to fulfil that requirement would, as a matter of EU law, render invalid the 50(2) notification.

    You cannot thus get to the stage whereby the European Communities Act 1972 itself means that EU law does not apply to the UK, before you have already breached EU law.

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