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Brexit: A pure question of law

29 November 2016

R (Miller & Anor) v Secretary of State for Exiting the European Union & Ors [2016] EWHC 2768 (Admin). The High Court has ruled that the government cannot rely on the royal prerogative to give notice of the UK’s intention to withdraw from the European Union (EU) pursuant to Article 50 of the Treaty of the European Union (TEU) without recourse to parliamentary approval.

The claimants in this case argued against the government’s assertion on two key grounds. Firstly, the claimants argued that the government could not use its prerogative powers to alter domestic law and abrogate rights; and secondly, that the fundamental rights conferred on UK individuals through EU law would be affected if the government triggered Article 50 through the exercise of its prerogative powers.

Alastair Dunn
Alastair Dunn
Partner

In its submissions the government relied on an established feature of UK constitutional law which provides that the prerogative powers of the Crown cover international treaties relations and the conclusion of treaties. The government further claimed that this power could only be taken away by express terms in an Act of Parliament.

The court stressed that the case was “a pure question of law” and made it clear that it was not concerned with the political considerations of leaving the EU.

Article 50 TEU states “any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements”. The court acknowledged that both parties had agreed that a notice under Article 50(2) can neither be withdrawn nor qualified. Consequently, the effect of notification would “inevitably result in the complete withdrawal of the United Kingdom from membership of the European Union”.

A significant part of the judgment concerns the legal arguments over the European Communities Act 1972 (the ECA) particularly regarding the extent to which the ECA confers rights on individuals. The court considered the three categories of fundamental rights arising under EU law through the ECA namely: (i) the rights capable of replication in domestic law; (ii) the rights enjoyed by UK nationals and companies in other Member States; and (iii) the rights which have an effect in UK domestic law and which cannot be replicated in domestic legislation. Both parties agreed that category (iii) rights would be lost as a result of withdrawal from the EU. Additionally the court held that, despite the government’s assertion that many rights would be preserved under the “Great Repeal Bill”, a number of category (i) rights would also be lost unless Parliament specifically chose to restore them.

The court then considered the relationship between the Crown’s prerogative powers and the doctrine of parliamentary sovereignty. The court emphasised the importance of the ECA as a statute of “special constitutional significance” and criticised the government’s argument on two counts: firstly that it was an established “powerful constitutional principle” that the Crown, through its prerogative powers, has no authority to alter domestic law. Secondly, the government had exaggerated its treaty-making powers in respect of international relations. Its argument was further undermined as it had been established earlier in the judgment that the exercise of the Crown’s prerogative power in this instance would bring changes to domestic law, rather than international law.

From its analysis of the ECA the court concluded that Parliament had intended that EU rights were to be incorporated into UK law in a way that could not be reversed by the government acting through the royal prerogative. It therefore followed that the government had no authority to give notice under Article 50 as this would effect the removal of the three categories of EU law rights which had been conferred upon UK nationals through the ECA.

The government has announced that it will appeal the decision and the Supreme Court has set aside four days in December for the hearing. Central to this judgment is the agreement by both parties that notice under Article 50 is irrevocable and the government has recently confirmed that it will not reverse its position in the appeal.

The Supreme Court has recently ruled that the Scottish government, amongst others, has the right to intervene in the appeal and the Lord Advocate, James Wolffe QC, has been asked to address the specific areas of Scots law that will be affected upon withdrawal from the EU. The Sewel convention dictates that the UK Parliament must ask the devolved parliaments for consent with regard to devolved matters. The Scotland Act 1998 has recently been amended by the Scotland Act 2016 and section 28(8) provides that “it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.” It is expected that the Lord Advocate will argue that notification under Article 50 cannot take place unless a legislative consent motion is passed by the Scottish Parliament.

The Independent Workers Union of Great Britain (the IWUGB) has also been granted intervener status in the appeal. In its submissions, the IWUGB has relied upon the Claim of Right 1689 (an Act of the pre-Union Scottish Parliament) which codified the tradition that a monarch is answerable to the law and people. In addition, the IWUGB has submitted that the Sewel convention has legal force as a result of the Scotland Act 2016 and is not merely convention.

By opening up the appeal to consider Scottish constitutional law adds to the complexity of the case and the potential political ramifications arising from the appeal should not be underestimated by the government. The Supreme Court has confirmed that all eleven of its judges will hear the case and their judgment is not expected until after the New Year.

Contact: Alastair Dunn Partner akd@bto.co.uk T. 0141 221 8012

 

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