Brexit means Brexit (subject to parliamentary approval)

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

The High Court has ruled that the government does not have the power to effect the withdrawal of the United Kingdom from the European Union using the royal prerogative, without reference to Parliament. The unanimous judgment, delivered by three of the most senior judges in the country, means that – unless it overturns the decision on appeal – the government must obtain parliamentary approval before invoking Article 50 of the Treaty on European Union.

Responding to the ruling, the government immediately announced that it will seek to appeal. Due to the importance of the case, it will ‘leapfrog’ the Court of Appeal to be heard by the Supreme Court next month, on December 7 and 8. However, for now, the legal position is clear: the prime minister and the government do not have the power to trigger Article 50 and begin the process of withdrawal from the EU without approval from Parliament.

The merits and mechanics of Brexit
Writing for The Justice Gap last month while the case was being heard by the High Court, I set out the arguments made by and against the government. As I explained then, this case concerned not the merits of Brexit, but the mechanics of it; not the political question of whether the UK should leave the EU, but the constitutional question of how and by whom that decision should be taken and notified.

Introducing its judgment, the court was at pains to emphasise that the proceedings only concerned ‘a pure question of law’, and not the ‘merits or demerits’ of withdrawal from the EU. The sole question for the court to answer was ‘whether, as a matter of the constitutional law of the United Kingdom, the Crown – acting through the executive government of the day – is entitled to use its prerogative powers to give notice under Article 50 for the United Kingdom to cease to be a member of the European Union.’

Anticipating the predictable criticism that would greet their decision, the judges stressed that the courts ‘have a constitutional duty fundamental to the rule of law in a democratic state to enforce rules of constitutional law’. It is within the proper constitutional role of the courts to determine whether the government requires parliamentary approval before invoking Article 50, and the court explicitly stated that it ‘does not question the importance of the referendum as a political event’; however, as Parliament must have appreciated, ‘the referendum was only intended to be advisory’, in the sense that it had no direct legal consequences.

What did the court decide?
It is significant that the government accepted – as did those bringing and intervening in the case – that Article 50 is irrevocable: once the notification of withdrawal from the EU has been made by a member state, its withdrawal becomes unavoidable. It follows from this, therefore, that it is inevitable that legal rights deriving from membership of the EU will be removed automatically as a result of the withdrawal notification.

Surveying the UK’s uncodified constitution, the court declared ‘the subordination of the Crown (i.e. the executive government) to law is the foundation of the rule of law in the United Kingdom.’ The extent of the powers of the executive, through use of the royal prerogative, was thus crucial to the case. The royal prerogative to conduct international relations is wide, because it ‘cannot, in ordinary circumstances, alter domestic law by using such power to make or unmake a treaty.’

The court held that the executive may create legal effects in international law by making or unmaking treaties, but it ‘cannot change domestic law’; without the intervention of Parliament, it cannot ‘confer rights on individuals or deprive individuals of rights’. Prerogative powers operate only on the international plane and cannot be used to alter domestic law.

Furthermore, the court found that it is clear that Parliament, in enacting the European Communities Act 1972, intended to introduce EU law into domestic law ‘in such a way that this could not be undone by exercise of the Crown prerogative power’. The ‘clear and necessary implication’ of the Act is that ‘Parliament intended EU rights to have effect in domestic law and that this effect should not be capable of being undone or overridden’ by use of the royal prerogative.

Reaction to the judgment
The lead claimant, Gina Miller, welcomed the decision and declared that the case ‘was about process, not politics’. The People’s Challenge, a crowdfunded group which intervened in support of the case, lauded the judges as ‘true guardians of parliamentary democracy’, while Labour leader Jeremy Corbyn said the ruling ‘underlines the need for the government to bring its negotiating terms to Parliament without delay’.

Meanwhile, some on the Leave side of the referendum campaign responded by questioning the legitimacy of the decision by ‘unelected judges’. Suzanne Evans, who aspires to succeed Nigel Farage as leader of Ukip, tweeted: ‘How dare these activist judges attempt to overturn our will? It’s a power grab & undermines democracy’. The Leave.EU group released a statement by Arron Banks which declared, ‘it’s no surprise that the legal establishment has joined the political class in declaring war on British democracy’.

It is, of course, ironic that many of those who campaigned for Brexit to ‘take back control’ on the grounds that EU membership restricts parliamentary sovereignty are now bemoaning a court judgment which enhances parliamentary sovereignty. But those are the times we live in.

What happens next?
The consequence of the judgment is that the government does not have the power to invoke Article 50 to begin the process of withdrawal from the EU. Unless it succeeds in overturning the judgment on appeal – which seems unlikely given the unanimous and thoroughly reasoned ruling by three eminent judges – the government will need to obtain approval from Parliament before submitting the Article 50 notification of withdrawal.

Parliamentary scrutiny may mean that MPs and peers grant their approval for the government to trigger Article 50 contingent on certain conditions, such as continued membership of the single market. The judgment will therefore ensure that Parliament has a vital role in determining the terms of Brexit. In a parliamentary democracy, that must be the right means of navigating a process as constitutionally significant and complicated as withdrawal from the EU.

In short, Brexit may well mean Brexit, but the High Court has added a footnote: subject to parliamentary approval.