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Following hearings in mid-October, the Divisional Court of the High Court of England and Wales has today handed down judgment in the Brexit judicial review of the Government's position that it could issue a notification of withdrawal from the European Union pursuant to Article 50 of the EU Treaty by exercise of its prerogative powers without consulting Parliament. The Court unanimously rejected the Government's position. The effect of the judgment is that there will have to be a vote in Parliament to authorise the issue of the Article 50 notification (a copy of the judgment and an official summary can be found here).
The Government had taken as its starting point the argument that the prerogative powers cannot be limited unless done so expressly by law and that the onus was on the claimants to point to express language removing the Crown's prerogative in relation to the conduct of international relations1. This was the wrong starting point according to the Court. The Court considered that the Government's submissions "glossed" over aspects of the strong presumption that Parliament intended to legislate in conformity with strong background constitutional principles and not against them. In particular, the Court considered that the Government's positions "gave no value" to the usual constitutional principle that, unless Parliament legislates to the contrary, the Crown should not have power to vary the law of the land by the exercise of its prerogative powers. The Court held the Governments submission was "flawed at this basic level" and this was supported by two constitutional principles, namely that the Crown cannot use its prerogative powers to alter domestic law and that the prerogative powers operate only on the international plane.
The Court rejected the Government's entitlement to use the prerogative powers because it considered that the European Communities Act 1972 (which is the legislation pursuant to which the UK became a member of the EU) gave rights to UK citizens and that the EU Treaty does not operate purely on an international plane. The Court rejected the Government's argument that it is entitled to issue the notification by exercise of the prerogative powers because this concerned the withdrawal from an international treaty and hence the withdrawal operated purely on the international level, as opposed to the domestic level. The Court emphasised the constitutional importance of the European Communities Act 1972, which permits UK citizens to enjoy rights under the European law where rights are capable of replication in domestic law ("category (i) rights" - for example, employment rights) and where rights exist directly in other Member States ("category (ii) rights" - for example, the free movement of persons), and as such is not subject to the usual doctrine of implied repeal. As the Court said in the judgment,
"The reality is that Parliament knew and intended that enactment of the ECA 1972 would provide the foundation for the acquisition by British citizens of rights under EU law which they could enforce in the courts of other member States. We therefore consider that the claimants are correct to say that withdrawal from the European Union pursuant to Article 50 would undo the category (ii) rights which Parliament intended to bring into effect, and did in fact bring into effect, by enacting the ECA 1972. Although these are not rights enforceable in the national courts of the United Kingdom, they are nonetheless rights of major importance created by Parliament. Accordingly, the claimants are entitled to say that it would be surprising if they could be removed simply through action by the Crown under its prerogative powers."
The Court was clear that the European Union Referendum Act 2015 itself did not give the Government the right to issue a notification under Article 50. The Court held that the referendum was only advisory, in accordance with "the basic constitutional principles of parliamentary sovereignty and representative democracy" that a referendum on any topic can only be advisory for the lawmakers in Parliament unless very clear language to the contrary is used. The Court also referred to a briefing paper sent to MPs before the 2015 Act was passed explaining that the referendum would have advisory effect only. The Court emphasised that these comments were only about the effect of the referendum in law and did not question the importance of the referendum as a political event, the significance of which they said would have to be assessed and taken into account elsewhere.
The Court reached the following conclusion in relation to Parliament's intention:
"Interpreting the ECA 1972 in the light of the constitutional background referred to above, we consider that it is clear that Parliament intended to legislate by that Act so as to introduce EU law into domestic law (and to create category (ii) rights) in such a way that this could not be undone by exercise of Crown prerogative power. With the enactment of the ECA 1972, the Crown has no prerogative power to effect a withdrawal from the Community treaties on whose continued existence the EU law rights introduced into domestic law depend (rights in category (i) and (ii)) and on whose continued existence the wider rights of British citizens in category (ii) also depend. The Crown therefore has no prerogative power to effect a withdrawal from the relevant treaties by giving notice under Article 50 of the TEU."
The Government has stated that it intends to appeal the judgment. The Supreme Court has indicated that it can hear the appeal in December and would likely want to issue judgment as soon as possible after the hearing.
The Government made clear in the judicial proceedings that any negotiated withdrawal treaty would likely require ratification and hence would have to be approved by Parliament at that stage. However, before that stage is reached, the major issue which arises is whether Parliament will simply approve the withdrawal alone, as an initial step, without knowing details of any withdrawal agreement. The European institutions have made clear that negotiations can only start once the Article 50 notification has been given, whereas many MPs have demanded to know details of the Government's negotiating position before they approve a withdrawal.
1The "royal prerogative" is a body of customary authority recognised in common law jurisdictions possessing a monarchy as belonging to the sovereign alone. And it is the means by which some of the executive powers of government (possessed by and vested in a monarch with regard to the process of governance of the state) are carried out.
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