10 Nov The UK High Court’s decision on BREXIT
A week is a long time in politics. This week has been longer than many of us would care to remember.
Exactly one week ago on 3 November 2016, eager not to be outshone by their friends ‘Trumpeting’ across the pond, the High Court of England and Wales heralded in its landmark judgment in the “Brexit” Case: R (Miller) v Secretary of State for Exiting the European Union  EWHC 2768.
Yesterday Prime Minister May announced that the decision has been appealed by the UK Government to the Supreme Court of England and Wales, and leave to appeal was granted. The unprecedented hearing in front of all 11 Supreme Court Justices will take place on 5 December 2016.
However, the Government will be hard pressed to succeed on the basis of any obvious legal error. The three High Court Justices, being the Lord Chief Justice of England and Wales, the Master of the Rolls and Lord Justice Sales, confined their decision to a very narrow point of law. They were on very firm ground.
What was the High Court’s decision?
The High Court decided, simply, that as a matter of constitutional law (1) the matter was justiciable by the Court; and (2) the Crown by the exercise of its royal prerogative powers through the executive government did not have the power to give notice under Article 50 for the United Kingdom to withdraw from the European Union.
The practical impact of the decision is that only the Parliament can make a decision to notify withdrawal from the European Union. The uncertainty that arises is as to what type of decision the Parliament needs to make. In particular, is it simply giving its blessing to the people’s decision or must it make a substantive decision in its own right? If substantive, what would it decide, particularly given the chaos that has been unleashed since 23rd June 2016?
A whistle-stop tour of the key statutory background to the decision is as follows:
- In 1973, the United Kingdom joined the European Communities, later known as the European Union. It was a condition of membership that the law of the Communities should be given effect in the domestic law of the United Kingdom.
- The United Kingdom enabled this to happen by in 1972 by passing the European Communities Act (1972). This enactment was necessary to allow the executive to ratify the Treaties, otherwise the ratification of the Treaties would have immediately put the United Kingdom in breach of its obligations.
- The Act provides that without further enactment, the Treaties shall be given effect in the United Kingdom. The Treaties to which this applies are routinely added to the schedule of the Act.
- The Court accepted that if the withdrawal from the Union takes place, then there will be no relevant Treaties to which the Act applies. (Although as a matter of practice this is not the case, as some have been enacted into domestic law so further steps would be required to unwind the laws).
- In 2008, an amendment act was passed to ratify the Lisbon Treaty of 2007, which gave effect to Article 50 of the Treaty on the European Union. Article 50 contains the right to withdraw from the European Union.
- Article 50(1) provides that any Member State may decide to withdraw from the Union in accordance with its constitutional requirements.
- Article 50(2) provides that any member State which decides to withdraw shall notify the European Council of its intention. The Union shall negotiate and conclude an agreement with that State setting out the arrangements for its withdrawal.
- Article 50(3) provides that, unless an extension is given, the Treaties shall cease to apply to the State from the date of the withdrawal agreement or failing that two years after the notice is given.
What did the High Court decide?
The faultless Aristotelian ‘balance of power’ reasoning of the Court can be summarised briefly as follows:
- Only Parliament can make, or amend, the law of the land.
- The Court quoted the eminent common law theorist Sir Edward Coke in The Case of the Proclamations (1610) 12 Co Rep 74 that: “the King by his proclamation or other ways cannot change any part of the common law, or statute law or the customs of the realm” and that “the King hath no prerogative but that which the law of the land allows him”.
- To put the matter beyond doubt, the Privy Council confirmed the position in The Zamora  2 AC 77: “the idea that the King in Council, or indeed any branch of the Executive, has power to prescribe or alter the law to be administrated by Courts of law in this country is out of harmony with the principles of our Constitution”.
- The bedrock of the constitution, since the English Civil Wars won by Oliver Cromwell in the 1700s, is that the Crown in Parliament is sovereign and supreme.
- The Crown cannot diminish or abrogate rights under the law of the United Kingdom unless expressly permitted to do so by Parliament.
- The Crown by the exercise of its prerogative powers can engage in matters of foreign relations and enter into international treaties.
- However, those treaties have no impact upon domestic rights of citizens unless and until enacted into law by Parliament.
- The notification of the withdrawal from the EU will necessarily impact upon the domestic rights of its citizens. There are some rules of the EU which are capable of being replicated in the UK, and others which are not, as well as rights created in other states and territories. The Court’s view was that all of these rights would be affected by withdrawal from the Treaties.
- The Crown cannot take away or affect these domestic rights by the exercise of its prerogative powers, without such a right having been reserved to it.
- No such right was reserved to it and therefore, the UK Government does not have the power under the Crown’s prerogative to give notice pursuant to Article 50 for the UK to withdraw from the European Union.
The Court noted the feature of this issue was that there is a direct link between rights and obligations arising on the international plane by membership of the European Union and the content of domestic law.
The claimant argued, and the Court agreed, that because the ECA 1972 provided that EU law has effect in domestic law, there is no room for the Crown to have prerogative power because that would undermine the principle summarised in The Zamora.
The Secretary of State sought to argue, unsuccessfully, that The Zamora principle of the subordination to the Crown to the law, was irrelevant to the matter at hand. The Government argued that the Crown’s prerogative power to give notice to withdraw from the Union treaties has not been removed by legislation and should therefore be taken to exist.
In effect, it was implied that Parliament’s intention was that the Crown had power to give notice under Article 50 in the exercise of its prerogative to conduct international relations on the part of the United Kingdom. The implication was said to arise from the fact that the Crown’s power had not been restricted. If Parliament had done nothing in the ECA 1972 to qualify the Crown’s pre-existing prerogative power to conduct international relations, that power would continue. Accordingly, the Crown had the power to give the notice with the consequent impacts upon domestic law.
The Court noted, in response, that it is precisely because there is no impact upon domestic law that the Crown’s prerogative may be exercised in matters of international relations.
The High Court emphasised that its decision had legal effect only and was not a view on either the merits of exiting the European Union or the referendum to do so. However, reading between the lines, the decision is a clarion call to the British Houses of Parliament to act decisively in relation to the bungled Brexit process.
The Court noted that the referendum was only, and could only have been taken to be, advisory in nature. This begs the question. The Court did not directly address, as it was not strictly speaking necessary to do so, the issue of whether or not the Referendum should have been held in a Parliamentary democracy.
Indeed the Court deliberately sidestepped the question as to whether or not the challenge in question should properly have been made to the decision to withdraw from the EU under Article 50(1) or a decision to notify the EU under Article 50(2).
The High Court found, without making a decision in relation to Article 50(1), that the decision to give notice under Article 50(2) is the appropriate target for the legal challenge. However, in so doing, it has neatly avoided coming to the conclusion that the Parliament should not have abrogated the decision in the first place.
My view is that the Referendum has only sought to undermine the system of parliamentary democracy. The “leave” campaign – taken in its best light – could be seen as the expression of a desire to return to British government or a traditional Parliamentary democracy in Britain.
However, by choosing to hold a referendum, UK Parliament overlooked that it alone should have made that decision and in so doing has undermined its own function and created immense uncertainty, both politically and in the market.
The only proper way to exit the European Union was for an election to be held which gave a clear mandate to the elected party to do so, on the basis of a very clear policy outlining the timeframe and clear proposal for the laws that would remain and the laws that it proposed would go. This is the essence of the proper Westminster Parliamentary process.
We do not allow our directors to ask shareholders to vote on the basis of imperfect information and yet such a significant decision was brought on the basis of a proposal that contained no detail at all and lacked government support.
In my view, the bending of the political class to the pressure to hold a referendum on Brexit is an abdication of their responsibility to govern. It is characteristic of the same deference to populism that has allowed Trump to be elected to the White House.
Thankfully we don’t have a Trump on our soil, yet. But the abandonment of any notion of a plebiscite on gay marriage in favour of decisive Parliamentary action to pass the same sex marriage legislation would be a good start on the difficult road back to a world where our politicians lead instead of determining policy by reference to the polls.
Whatever view you hold about the legacy of Oliver Cromwell, there can be no doubt that he led his troops from the front. Our politicians should also lead from the front.
*A “TED-style” speech given on 10 November 2016 at Herbert Smith Freehills, as part of a Gender Equity Briefing Breakfast Series.