Article 50 legal action: determining the mechanics of Brexit

Little England (was Great Britain). Pic by Diamond Geezer (Flickr, under creative comms)

This week and next, the High Court is hearing legal submissions about whether the United Kingdom’s anticipated departure from the European Union must be authorised by an Act of Parliament. The government has, to date, insisted that it can invoke Article 50 of the Treaty on European Union to formally notify the EU of the UK’s decision to leave, thus precipitating the negotiations over Brexit, through use of the royal prerogative (a legal device enabling the executive to exercise the residual discretionary powers of the monarch).

The legal challenge is brought by two British citizens, Gina Miller, an investment fund manager, and Deir Dos Santos, a hairdresser, by way of judicial review against David Davis, the Secretary of State for Exiting the EU. The claimants – who are also joined by several interested parties and interveners, including the crowdfunded ‘People’s Challenge’ – seek a declaration by the court that Article 50 may only be triggered following a parliamentary vote. During Prime Minister’s Questions this Wednesday, Theresa May repeated her assertion that there will be no parliamentary vote on the terms of Brexit.

The most important constitutional case of a generation
The legal blogger David Allen Green said the Article 50 challenge ‘may be the most important constitutional case of a generation’. That is because it concerns the fundamental constitutional principle of the separation of powers between the legislature (parliament), the executive (government) and the judiciary (the courts).

The crux of the question is whether the executive has the power to make the formal decision to leave the EU, or whether such a decision may only be taken by the legislature. The third branch, the judiciary, has been asked to determine the answer to this question. At present, the case is before the High Court; however, there appears to be consensus that, given its importance, it is destined to reach the Supreme Court, probably by way of a ‘leap-frog’ appeal to bypass the Court of Appeal.

The merits and mechanics of Brexit
Just to be clear, I voted Remain. I accept that there were legitimate arguments on the Leave side, but I believe the UK will be economically and socially poorer and less secure if it leaves the European Union. This article is not about the merits of Brexit but the constitutional mechanics of it. The legal challenge is not about whether we decide to leave the EU, but rather who makes the decision and how that decision is made. The court is being asked to determine the limits and the extent of the power of the executive, as opposed to parliament.

On this view, those bringing the challenge seek to uphold, rather than undermine, parliamentary sovereignty. Conversely, David Davis – who in his role as Brexit Secretary has spoken about putting ’the sovereignty and supremacy of parliament beyond doubt’ by leaving the EU – is in the somewhat curious position of arguing to restrict the power of parliament at the expense of the executive.

Union Jack. Pic by Dave King (Flickr, creative comms)

Article 50: the exit clause
This clause of the Lisbon Treaty, little known before the referendum but now an established feature of public discourse, provides that ‘any member state may decide to withdraw from the Union in accordance with its own constitutional requirements’ (Article 50(1)). Following such a decision, ‘a member state which decides to withdraw shall notify the European Council of its intention’ (Article 50(2)).

Once a member state has notified the European Council of its intention to withdraw from the EU, a two year period commences in which arrangements for withdrawal must be negotiated. If no agreement is reached, the state ceases to be a member of the EU at the end of that two year period unless all of the member states agree to an extension. As a matter of international law, the Article 50 process is the only way that a member state may withdraw from the EU.

In accordance with constitutional requirements
Now, the question of what ‘in accordance with its own constitutional requirements’ means will vary between different member states of the EU. What this means for the UK is a question of domestic law and is effectively the subject of the Article 50 judicial review.

Starting with the claimants’ case for arguing that the UK’s uncodified constitution requires an Act of Parliament before the government may lawfully notify the EU of a decision to withdraw, this may be summarised as follows:

1. The government has no statutory power to give notification of withdrawal from the EU under Article 50(2). The referendum was, as a matter of law, advisory (rather than binding). Notification may therefore only be lawfully given if it is a valid exercise of the royal prerogative.
2. Prerogative powers may not be validly exercised where this would frustrate or substantially undermine rights and duties established by Acts of Parliament. Giving notification of withdrawal from the EU would frustrate or substantially undermine the terms of the European Communities Act 1972, and would be inconsistent with the purpose of that Act (which was to incorporate EU law into domestic law).
3. Prerogative powers may not be used to pre-empt the decision of Parliament on whether or not to continue with a statutory scheme. Giving notification of withdrawal from the EU would pre-empt the decision of Parliament on whether or not to retain EU law rights given effect by the 1972 Act.
4. Therefore, notification may only be validly authorised by an Act of Parliament. A debate in Parliament on a motion would not suffice.

In short, the claimants submit that the government ‘cannot lawfully use prerogative powers to commit the law of the United Kingdom to such substantial alteration or elimination of rights protected, and duties imposed, by legislation – far less in relation to an Act of Parliament with constitutional status’, such as the European Communities Act.

Turning to the government’s grounds of defence, in which it seeks to demonstrate that the power to invoke Article 50 rests with the executive as an exercise of the royal prerogative, the principal arguments are:

1. Notification under Article 50 is an administrative act in international law which cannot be challenged in the domestic courts.
2. The claim conflates the process of notification with the decision to be notified, namely the UK’s decision to leave the EU, as articulated in the referendum result. In the circumstances, it is constitutionally proper to give effect to the referendum result by the use of prerogative powers. It was clearly understood that the government would give effect to the referendum result.
3. The decision to withdraw from the EU is not justiciable, but is a matter of the highest policy reserved to the Crown.
4. The relief sought in the claim – which would compel the Secretary of State to introduce legislation to give effect to the outcome of the referendum – is constitutionally impermissible.
5. The exercise of prerogative power in these circumstances is consistent with domestic constitutional law. It is not precluded by or inconsistent with the European Communities Act or any other statute. Nor would starting the process of withdrawal itself change any common law or statute.
6. The lawfulness of the use of the prerogative is not impacted by the devolution legislation. The conduct of foreign affairs is a reserved matter such that the devolved legislatures do not have competence over it.

The parties’ competing arguments can be separated into the questions addressed below.

Is the matter justiciable?
The government has questioned whether the courts may properly adjudicate on who can invoke Article 50: it argues that the point at which the UK should give notification of withdrawal is ‘a matter of high, if not the highest, policy; a polycentric decision based upon a multitude of domestic and foreign policy and political concerns for which the expertise of ministers and their officials are particularly well suited and the courts ill-suited’.

The claimants counter that it is for the courts to determine the legal limits of the royal prerogative, and the court is not being asked to decide any question of policy. On this point, which may be considered preliminary to the substantive legal arguments, I find the claimants’ view preferable: the government mischaracterises the challenge as being against the policy, rather than procedure. It is undoubtedly within the remit of the courts to determine the scope of the royal prerogative. The alternative is executive tyranny.

The government further states that the declaration sought by the claimants is ‘constitutionally impermissible’ because it would ‘compel the Secretary of State to introduce legislation into Parliament to give effect to the outcome of the referendum’. The claimants respond that the declaration it seeks from the court would simply affirm that ‘if the Secretary of State wishes to notify, he lacks lawful power to do so unless an Act of Parliament so authorises him’. This, it is argued, would assert parliamentary sovereignty and prevent the executive from undermining or pre-empting the decision of Parliament.

Here the government overstates the effect of a declaration that an Act of Parliament is required in order to authorise notification under Article 50. If such a declaration was made by the courts, subject to any appeal the government would then have two options: (1) introduce legislation to authorise the notification; or (2) do nothing. In other words, the court would not be forcing the government to do anything, but simply specifying how notification of withdrawal from the EU may be authorised in the event that the government wishes to effect such withdrawal .

Union Jack. Pic by Vladislav Nikitin (Flickr, creative comms)

Has the Article 50 decision already been taken?
There is a somewhat tangential question, in that the government’s written submissions refer to the ‘decision to leave the EU, as articulated in the referendum result’. By doing so, the government is advancing an argument that the first stage of Article 50 – the decision to withdraw – has already taken place, by virtue of the referendum. This claim is, I think, a non-starter (see Professor Elliott’s detailed analysis), but is not a crucial issue given that the case really turns on how the Article 50(2) notification is made, rather than how the Article 50(1) decision is made. Nevertheless, this does feed into the question of whether the referendum was advisory or binding.

The EU Referendum: advisory or binding?
There have been three national referendums in the UK: in 1975, on whether the UK should remain a member of the European Economic Community; in 2011, on whether to change the voting system for parliamentary elections to the alternative vote; and this year, on whether the UK should remain in the EU. (There have been region-specific referendums in Scotland, Wales, Northern Ireland and London).

The claimants correctly state that the European Union Referendum Act 2015 ‘did not specify what consequences, if any, should follow from the referendum result’. Consequently, they assert that ‘as a matter of law, it was an advisory referendum’. In this regard it can be contrasted with the referendum on the alternative vote, as the statute providing for that plebiscite required the Prime Minister to bring into effect the alternative vote in the event that the public voted to change the electoral system.

No such mandatory provision to make the result binding was included in the statutes establishing the referendums on EEC membership in 1975 or Scottish independence in 2014. If the outcome of the Scottish referendum had been a majority vote in favour of independence, it was accepted that both the Westminster and Holyrood would have had to legislate to bring about Scotland’s divorce from the UK.

However, in its grounds of resistance, the government describes the characterisation of the referendum as merely advisory as ‘incomplete and inappropriate’ when using that term to imply lack of parliamentary permission to give effect to the result. The government here seems to imply that the EU Referendum Act 2015 provides it with a legal basis for implementing the result of the referendum by invoking Article 50. The Act says nothing of the sort: it simply makes provision for the holding of the referendum, but is silent on whether and how the result of the vote should be implemented.

Interestingly, in 2010 the government responded to a report on referendums by the House of Lords Select Committee on the Constitution to agree that ‘under the UK’s constitutional arrangements Parliament must be responsible for deciding whether or not to take action in response to a referendum result’. The report itself had recognised that ‘because of the sovereignty of Parliament, referendums cannot be legally binding in the UK, and are therefore advisory’. This statement of policy is not determinative of the case, but it’s at least a little embarrassing for the government to now be adopting the contrary position in court.

A counterfactual scenario outlined by Jolyon Maugham QC illustrates the point about the non-binding, advisory nature of the referendum: in an alternate reality where David Cameron’s successor as Prime Minister was not Theresa May but another leader who ‘took a different view as to the quality of the mandate given by the referendum’, it is possible that the government could have ignored the vote on 23 June with no legal consequences. Undoubtedly, such a stance would generate significant political ramifications, but the government was and is under no legal duty to implement the popular vote for Brexit.

Can the Article 50 notification be made using the royal prerogative?
This is the fundamental question for the court. The government maintains that, following the referendum, it may invoke Article 50 to withdraw from the EU using the royal prerogative, without further authority from primary legislation. Those challenging the government argue that an Act of Parliament is needed to authorise the Article 50 notification.

When the UK joined the then European Economic Community, an Act of Parliament (the European Communities Act 1972) was required before the government could ratify the treaty of accession and give effect to EU law in domestic law. By extension, the claimants contend that an Act of Parliament is required before the UK may withdraw from the EU.

Last month, the House of Lords Constitution Committee published a report on the invoking of Article 50 in which it said that Parliament should ‘play a central role in the decision to trigger the Article 50 process’, either by way of legislation or a resolution. The Committee said it would be ‘constitutionally unacceptable, not to mention setting a disturbing precedent, for the Government to act on an advisory referendum without explicit parliamentary approval – particularly one with such significant long-term consequences.’

During submissions on Thursday, Lord Pannick QC, leading counsel for the lead claimant, delved into 17^th century case law, referring to the Case of Proclamations (1610): ‘The King by his proclamation … cannot change any part of the common law or statute law or the customs of the realm.’ As the inevitable result of invoking Article 50 is the removal of EU rights, Pannick argues that the residual prerogative powers of the monarch cannot be used to bring about his change in the law.

Pannick submitted in court on Thursday that the logical conclusion of the government’s position is that it would be open to the government to use prerogative powers to withdraw from the EU under Article 50 even if there had been no referendum. That, he said, would be ‘a quite remarkable state of affairs’ and is unsustainable.

The Attorney General, Jeremy Wright QC MP (a former criminal barrister), and the team of lawyers representing the government will respond in oral submissions to the court next Tuesday. It will be argued that entering into and withdrawing from international treaties is a matter for the Crown under the royal prerogative. Arguably, the difference in this case is that notification of withdrawal from the EU necessitates the repeal of the European Communities Act 1972. Once Article 50 is invoked, it is effectively an irreversible process, meaning that repeal of the Act would be required despite Parliament providing no authorisation for it.

While the government has announced that an Act of Parliament – the ‘Great Repeal Bill’ – will be used to give effect to the UK’s withdrawal from the EU, it insists that no legislation is required to authorise it to notify the EU of the intended withdrawal under Article 50. This, it says, is because it is constitutionally appropriate for the government to use prerogative powers to withdraw from the EU without the need for further parliamentary approval, and the European Communities Act does not limit or restrict the prerogative.

This will be for the High Court – and perhaps ultimately the Supreme Court – to decide. As a matter of principle, there is great force in the argument that an Act of Parliament, or at least some form of explicit parliamentary approval, should be required in order to authorise such a fundamental constitutional change as withdrawal from the EU. However, as a matter of law the question is finely balanced, and legal experts disagree on the likely result of the case. Whatever the outcome, the judgment will be of immense constitutional significance – and may require the government to seek explicit parliamentary approval before invoking Article 50.