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Parliament must authorise notice of withdrawal from the EU under Article 50
The UK Supreme Court has yesterday, by a majority of 8-3, dismissed the Government’s appeal against the Divisional Court’s judgment in November 2016 which held that the Government could not give notice of its intention to withdraw from the EU under Article 50(2) of the EU pursuant to its powers under the royal prerogative to withdraw from international treaties. The Supreme Court has held that notice under Article 50 must be authorised by an Act of Parliament. This will require a bill to be passed before both Houses of Parliament, although the Court has made clear that a “very brief statute” would suffice: what matters is not the length or complexity of the statute but rather the fact that it will be primary legislation enacted by the Queen in Parliament. In light of this, attention may now turn to Ireland where a judicial review, aimed at establishing that notice under article 50 can be withdrawn, is about to be launched.
The issue before the Supreme Court and the arguments
As the Supreme Court has made clear throughout this process, and as it reiterated, the question before the court concerned the steps required as a matter of UK domestic law before the process of leaving the European Union can be initiated pursuant to Article 50. Article 50(1) says, “Any member state may decide to withdraw from the Union in accordance with its own constitutional requirements.” The Supreme Court judgment specifies what those requirements are.
The primary argument of the claimants, which was accepted by the majority, was summarised by Lord Neuberger at paragraph 36 of the Judgment:
“36. The applicants’ case in that connection is that when Notice is given, the United Kingdom will have embarked on an irreversible course that will lead to much of EU law ceasing to have effect in the United Kingdom, whether or not Parliament repeals the 1972 Act. As Lord Pannick QC put it for Mrs Miller, when ministers give Notice they will be “pulling … the trigger which causes the bullet to be fired, with the consequence that the bullet will hit the target and the Treaties will cease to apply”. In particular, he said, some of the legal rights which the applicants enjoy under EU law will come to an end. This, he submitted, means that the giving of Notice would pre-empt the decision of Parliament on the Great Repeal Bill. It would be tantamount to altering the law by ministerial action, or executive decision, without prior legislation, and that would not be in accordance with our law.”
In other words, rights were granted by Parliament through EU membership and they were therefore Parliament’s rights to take away, so the argument went.
The Government did not dispute that significant changes would follow from withdrawing from the EU Treaties but argued that this did not prevent the Government giving notice because the 1972 Act had not excluded the prerogative power to withdraw from treaties and that the 1972 Act gave effect to EU law only insofar as the EU Treaties required it.
The judgment of the majority
The judgment of the majority was given by the President of the Supreme Court, Lord Neuberger. Lord Neuberger examined the history of the UK’s involvement with the EU. As one would have expected, the various European Treaties, such as the Treaties of Maastricht, Amsterdam, Nice and Lisbon, had all been ratified by Parliament. The UK legislation ratifying these Treaties had often stated that further changes should not be ratified “unless approved by an Act of Parliament” or imposed restrictions relating to amendments to the EU Treaty, including approval by an Act of Parliament (see paragraphs 24-30).
(i) The European Communities Act 1972
Lord Neuberger explained the constitutional significance of the 1972 Act, which was, in constitutional terms, unprecedented because it not only made EU law a source of UK law, but actually takes precedence over UK law, including Acts of Parliament. However, he emphasised that EU law only enjoyed this automatic and overriding effect by virtue of the 1972 Act and thus only while it remains in force and accepted that EU law would not apply if the UK ceased to be bound by the EU Treaties. But he held that (see paragraphs 77 and 78 of the Judgment):
“77. We also accept that Parliament cannot have intended that section 2 should continue to import the variable content of EU law into domestic law, or that the other consequences of the 1972 Act described in paras 62 to 64 above should continue to apply, after the United Kingdom had ceased to be bound by the EU Treaties. However, while acknowledging the force of Lord Reed’s powerful judgment, we do not accept that it follows from this that the 1972 Act either contemplates or accommodates the abrogation of EU law upon the United Kingdom’s withdrawal from the EU Treaties by prerogative act without prior Parliamentary authorisation. On the contrary: we consider that, by the 1972 Act, Parliament endorsed and gave effect to the United Kingdom’s membership of what is now the European Union under the EU Treaties in a way which is inconsistent with the future exercise by ministers of any prerogative power to withdraw from such Treaties.
78. In short, the fact that EU law will no longer be part of UK domestic law if the United Kingdom withdraws from the EU Treaties does not mean that Parliament contemplated or intended that ministers could cause the United Kingdom to withdraw from the EU Treaties without prior Parliamentary approval. There is a vital difference between changes in domestic law resulting from variations in the content of EU law arising from new EU legislation, and changes in domestic law resulting from withdrawal by the United Kingdom from the European Union. The former involves changes in EU law, which are then brought into domestic law through section 2 of the 1972 Act. The latter involves a unilateral action by the relevant constitutional bodies which effects a fundamental change in the constitutional arrangements of the United Kingdom.”
Lord Neuberger stressed that one of the most fundamental functions of the constitution of any state is to identify the sources of its law. As stated above, the 1972 Act was of such constitutional significance because it was the “conduit pipe” by which EU law was brought into UK domestic law as an overriding source of law. Lord Neuberger did not consider that the Government’s arguments answered the objections based on the constitutional implications of withdrawal from the EU, which is fundamentally different from varying the content of EU law. Withdrawal, he said “will constitute as significant a constitutional change as that which occurred when EU law was first incorporated in domestic law by the 1972 Act.” He said (at paragraph 81):
“It would be inconsistent with long-standing and fundamental principle for such a far-reaching change to the UK constitutional arrangements to be brought about by ministerial decision or ministerial action alone. All the more so when the source in question was brought into existence by Parliament through primary legislation, which gave that source an overriding supremacy in the hierarchy of domestic law sources.”
Lord Neuberger accepted that parliament could have provided that the rights introduced under the 1972 Act would only prevail only for so long as the UK Government did not decide otherwise but he did not accept that the 1972 Act did so. Given that the 1972 Act required ministers not to commit to any new arrangement, whether it increased or decreased the potential volume and extent of EU law, without first obtaining Parliamentary approval, it would hardly have been compatible with these provisions if ministers, in reliance on prerogative powers, could unilaterally withdraw from the EU Treaties without Parliamentary approval. Indeed, it was also pointed out that if the Government’s argument was right, they could have withdrawn from the EU even if there had not been a referendum or, in theory at least, even if there had been a vote to remain, which Lord Neuberger described as “implausible propositions”.
Lord Neuberger also dismissed the arguments that a decision to withdraw using the prerogative powers would be acceptable because the decision could be subject to judicial review or because ministers were accountable to Parliament, pointing out that these arguments could be used to justify all sorts of powers being granted to ministers. Nor did he place any significance on the fact that Parliament will be formally involved in the process of withdrawal. Whilst accepting that this seemed likely, he considered that it missed the point because the die would be cast before Parliament became involved.
(ii) The Referendum Act 2015
As regards the Referendum Act 2015, the claimants argued that it had no legal significance, only political significance, because it did not specify the consequences that would follow from a vote to leave. The Government argued that the 2015 Act was enacted on the basis that the result of the referendum would be decisive and that, having referred the question whether to leave the EU to the electorate, Parliament cannot have intended that the same question would then be referred straight back to it.
Lord Neuberger rejected the Government’s argument, considering that it assumed what it sought to prove, namely that the referendum was intended to have legal effect. The 2015 Act did not specify the consequences of a vote to leave and, as Lord Neuberger stated (at paragraph 121):
“121. Where, as in this case, implementation of a referendum result requires a change in the law of the land, and statute has not provided for that change, the change in the law must be made in the only way in which the UK constitution permits, namely through Parliamentary legislation.”
Lord Neuberger acknowledged that the result of the referendum did not have any legal effect but did recognise its great political significance.
“124. Thus, the referendum of 2016 did not change the law in a way which would allow ministers to withdraw the United Kingdom from the European Union without legislation. But that in no way means that it is devoid of effect. It means that, unless and until acted on by Parliament, its force is political rather than legal. It has already shown itself to be of great political significance.”
(iii) The form of legislation required
The Supreme Court considered the question of the form of legislation required to trigger Article 50 to be “entirely a matter for Parliament” but, having said that, Lord Neuberger did make clear that a very brief statute would suffice:
“122. What form such legislation should take is entirely a matter for Parliament. But, in the light of a point made in oral argument, it is right to add that the fact that Parliament may decide to content itself with a very brief statute is nothing to the point. There is no equivalence between the constitutional importance of a statute, or any other document, and its length or complexity. A notice under article 50(2) could no doubt be very short indeed, but that would not undermine its momentous significance. The essential point is that, if, as we consider, what would otherwise be a prerogative act would result in a change in domestic law, the act can only lawfully be carried out with the sanction of primary legislation enacted by the Queen in Parliament.”
(iv) Devolution questions
The case before the Supreme Court also raised issues regarding the effect of devolution for Scotland and Northern Ireland and whether the approval of their respective Parliaments to the UK’s withdrawal from the EU was required. The Supreme Court unanimously held that such approval was not required.
Although there is a political convention, known as the Sewel Convention and now embodied in a Memorandum of Understanding, which states that:
“The UK Government will proceed in accordance with the convention that the UK Parliament would not normally legislate with regard to devolved matters except with the agreement of the devolved legislature. The devolved administrations will be responsible for seeking such agreement as may be required for this purpose on an approach from the UK Government.”
However, the Memorandum also made clear that this was just a statement of political intent and that it did not create legal obligations.
Lord Neuberger observed that “Judges ... are neither the parents nor the guardians of political conventions; they are merely observers” and as such the court did not have jurisdiction to enforce it.
The dissenting judgments
Three of the eleven justices dissented: Lords Reed, Carnwath and Hughes. The main dissenting judgment was given by Lord Reed.
Lord Reed accepted the importance in the UK’s constitutional law of the principle of Parliamentary sovereignty over domestic law but did not consider that Parliament had to enact an Act of Parliament before the UK can leave the EU. This is because he considered the effect which Parliament has given to EU to be conditional on the application of the EU Treaties to the UK and therefore on the UK’s membership of the EU.
Lord Reed did not consider the 1972 Act to impose any requirement, or to manifest any intention, in respect of the UK’s membership of the EU and did not therefore affect the Crown’s exercise of prerogative powers in respect of foreign relations, including the power to enter into or withdraw from international treaties (see paragraphs 177). Lord Reed considered that this fundamental provision could only be overridden by express or necessary provision.
Lord Reed also considered the effect of the Referendum Act 2015 and was of the view that as Parliament had not given itself a further role in the process, as it had done in respect of other Acts relation to the EU where it had required Parliamentary approval of certain decisions, it was hard to regard such a requirement as being implicit.
Lord Reed also accepted the Government’s argument that the 1972 Act gave effect in domestic law to a body of law known as EU law, which could alter from time to time, and that this could include the repeal and restriction of EU rights previously created (see paragraph 216). In his view, the 1972 Act “simply creates a scheme under which domestic law reflects the UK’s international obligations, whatever they may be.” (see paragraph 217). He did not accept that notice under article 50 would alter the law of the land and considered that in any event Parliament could legislate so as to protect rights. But equally it had to be accepted that Parliament could not recreate certain EU law rights, which only served to emphasise the different nature of EU law.
Lord Hughes agreed with Lord Reed’s judgment. Lord Carnwath also agreed with Lord Reed but explained his reasoning in more detail. He considered it illogical to search in the 1972 Act for a presumed Parliamentary intention in respect of withdrawal at a time when the Treaty contained no express power to withdraw and there was no reason for Parliament to consider it (during the hearing an analogy was drawn with a bride on her wedding day who will usually not be considering divorce!). Article 50 was introduced by the Treaty of Lisbon and the 2008 Act which recognised that the treaty did not impose any restriction on the exercise of Article 50 by the Executive. A 2011 Act made reference to Article 50(3) but did not refer to Article 50(2). He therefore did not consider that the 1972 Act or subsequent legislation removes the Crown’s treaty-making prerogative.
Lord Carnwath agreed with Maguire J in the Northern Ireland proceedings, who said a distinction should be drawn between what occurs on the triggering of Article 50(2) and what may occur thereafter. Lord Carnwath considered the trigger/bullet analogy used by Lord Pannick QC for the claimants to be fallacious:
“262. Lord Pannick’s trigger/bullet analogy is superficially attractive, but (with respect) fallacious. A real bullet does not take two years to reach its target. Nor is its progress accompanied by an intense period of negotiations over the form of protection that should be available to the victim by the time it arrives. The treaties will indeed cease to apply, and domestic law will change; but it is clearly envisaged that the final form of the changes will be governed by legislation. As the Secretary of State has explained, the intention is that the legislation will where possible reproduce existing European-based rights in domestic law, but otherwise ensure that there is no legal gap.”
Lord Carnwath noted the unprecedented and enormous nature of the legal and practical changes caused by Brexit and that the Article 50 process “must and will involve a partnership between Parliament and the Executive”. But he did not consider that this means that legislation is required simply to initiate it. Legislation will undoubtedly be required to implement withdrawal, but the process, including the form and timing of any legislation, can and should be determined by Parliament and not by the courts.
The decision of the Supreme Court does not come as a surprise, save perhaps that there were as many as three dissenting judgments. It had been widely reported that the Government was expecting defeat and had prepared various forms of legislation to put before Parliament in order to start the legislative process in the hope of meeting the Prime Minister’s self-imposed deadline for issuing notice under article 50 by the end of March 2017.
What is most interesting though is that the case proceeded on the basis that notice under article 50(2) cannot be given in qualified or conditional terms and that, once given, it cannot be withdrawn (see paragraph 26 of the judgment). This was common ground between the parties. The Government’s case was that even if this common ground was mistaken, it made no difference to the outcome of the case. From a purely legal perspective, this a surprising concession to have made; if a notice under article 50(2) can be withdrawn then it is far from inevitable that the rights will be taken away.
Politically though it is more understandable. The Prime Minister has been quite clear that “Brexit means Brexit” and has refused to entertain the prospect of there being a further referendum to see if the UK really does want to leave. However, the EU Treaty does not make clear whether a notice is revocable, but there are many who argue that it is. Indeed, it is understood that there is to be a judicial review in the Republic of Ireland, organised by an English QC and financed through crowdfunding, the aim of which is to establish that notice under Article 50 is revocable and can be withdrawn and therefore to pave the way for a further referendum before the UK leaves the EU. Unlike the question before the Supreme Court though, the question of the revocability of notice would be a question of the interpretation of the EU Treaty, which is ultimately for the Court of Justice of the European Union to determine. This may also have been a factor in the Government’s decision not to touch the revocability issue as it would almost certainly have resulted in the question being referred to the European Court. This would not have gone down well with those who wished to leave and for many of whom the notion of “justice” being dispensed from a court sat in Luxembourg was distinctly unpalatable.
It seems likely that Parliament will pass an Act approving a notice under Article 50, although it remains to be seen how much opposition there is in both Houses. Once notice is served, that will start the two-year period for negotiations between the UK and rest of the EU as to the terms of departure and any replacement treaty.
Those who wish to remain may wish to turn their attention to what is happening in Ireland. There are many, such as former Prime Minister, Tony Blair, and former deputy prime Minister, Nick Clegg, who consider the referendum to be part of an ongoing dialogue and who think that a further referendum should not be ruled out. If, once negotiations have started, the UK does not look likely to achieve a satisfactory exit deal the calls for a second referendum may become louder.
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