Brexit: here come the lawyers

As a matter of “powerful constitutional principle”, no exercise of prerogative power alone is capable of altering domestic law

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In  R (Miller) v Secretary Of State For Exiting The European Union [2016] EWHC 2768 (Admin), three of the English High Court’s most senior judges (personally and outrageously maligned as partial by the media, to the Lord Chancellor’s unforgiveable silence) last week found against the United Kingdom government’s position on the process by which the UK may withdraw from the European Union.  As well as providing for a frisson of local recognition by the judges’ reliance on Fitzgerald v Muldoon [1976] 2 NZLR 615 (HC) (of which Brexit has populist echoes), the judgment presents substantial challenges to the UK government, not all answerable by its ‘leapfrog’ appeal (to be heard next month by all 11 Supreme Court judges, apparently to avoid any suggestion alternative results could be available from a differently constituted panel).

At issue is Article 50 of the Treaty on European Union, which provides “(1) Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.  (2) A Member State which decides to withdraw shall notify the European Council of its intention”.  Absent earlier agreement on terms of withdrawal (or for its extension), withdrawal takes effect two years after notification.  The parties and Court assumed notification is irrevocable and unconditional.

The European Union Referendum Act 2015 made no provision for what should follow its result.  The two principal claimants argued, respectively, as notification led inexorably to termination of rights conferred by the UK’s European Communities Act 1972, neither Art 50(1) decision nor Art 50(2) notification could be made other than by Parliament.  The government responded Parliament intended the 2015 Act’s result to be the decision, for notification by proper exercise of prerogative power to make and unmake treaties, on determination of the people’s “final say”.

The Court held, if the Crown lacked prerogative power to notify, then neither had it such power to decide to withdraw.  The 1972 Act is a “constitutional statute”, overriding conflicting legislation.  Notification would lead to loss of rights the 1972 Act (arguably, see below) ‘conferred’.  As a matter of “powerful constitutional principle”, no exercise of prerogative power alone is capable of altering domestic law.  From the time of the 1972 Act, the Crown lost any prerogative power to notify withdrawal from its constituent treaties.  In light of “basic constitutional principles of parliamentary sovereignty and representative parliamentary democracy”, although as “a pure legal point”, the 2015 Act gave only an advisory referendum result.

If that position is maintained on appeal, achievement of Brexit (as mandated by ‘popular democracy’) remains challenging.  Parliament itself must decide to withdraw, but the extent of that decision – including consequent amendments and repeals? – is undetermined.  The decision may be easier if notification was revocable or conditional (as Art 50’s ‘intention’ may suggest).  But the final arbiter of Art 50’s meaning is the European Court of Justice, recourse to which here will be ironic. And there is an alternative view – the 1972 Act only enabled application of (ever-changing) EU treaty rights to the UK, contingent on Art 50’s non-exercise, which remains for performance by prerogative power.

[This article was first published in The Capital Letter (39/43, 8 November 2016)]

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