R (Miller and others) v Brexit Secretary: the claimants’ argument

by Carl Gardner on October 13, 2016

Today the “article 50” challenge begins in the High Court. The claimants in the judicial review case want the court to order that government cannot lawfully decide to give notice of Brexit under article 50 of the Treaty on European Union unless Parliament first authorises it to do so by statute. As counsel for the claimants get on their feet to make their case this morning, here’s my brief analysis of what we know of their case from the “skeleton argument” of one set of interested parties to the case: you can read it and my detailed comments on it in the reader below, or by clicking at the bottom left corner on to “full screen” mode.

Essentially the claimants make three arguments (see para. 6 of the skeleton):

  • the government's common law prerogative power to withdraw from the EU treaties has been impliedly put in abeyance, or suspended, by legislation—in particular the European Communities Act 1972, but also the European Union Act 2011 and devolution legislation such as the Scotland Act 1998; this is ground 1;
  • even if the prerogative power remains, it may not be used to modify fundamental rights such as EU citizenship; this is ground 2;
  • even if prerogative power can be used to remove EU citizenship, it's an abuse of power for it to be used to "trigger" article 50; this is ground 3.

Ground 1 is the argument originally put forward by Barber, Hickman and King, and which I wrote about here. (There seems to be a problem with the link: I'm sorry. Until I can solve that, please scroll down to June 27 where you'll find my post).

I agree with those like Mark Elliot who see this as a flawed and ultimately unsustainable argument. In my view it confuses two separate legal systems, merging the international law plane (on which the government will give notice under article 50) with the domestic law plane (on which Parliament will or will not make changes to our internal, national law to give domestic effect to Brexit). It is this confusion or merger that allows it to be said, in my view wrongly, that triggering article 50 would have automatic legal effects in the UK. It wouldn't.

Here, the argument is boosted by reference to devolution legislation and the Acts of Union between England and Scotland—but I don't think the devolution angle really adds significant weight to it—as well as to the Bill of Rights 1689. But giving article 50 notice would not suspend any internal laws in the UK, so the Bill of Rights point is not in my view a good one.

The "citizenship rights" argument—ground 2—is interesting, but ultimately suffers from the same defect of assuming article 50 has automatic legal effects. Article 50 notification will not remove anyone's EU citizenship: if that happens, it'll be done by a subsequent UK-EU withdrawal treaty and by an Act of Parliament giving effect to it.

I don't think ground 3 really adds anything. In essence it is that triggering article 50 under the prerogative would thwart Parliament's purpose in statute, strip its legislation of meaning and reduce its role to a formality. But this is, I think, really just another way of stating ground 1. Again, it's the mere existence of the ECA 1972 and other legislation that, according to the argument, makes this use of the prerogative necessarily abusive. This is to all intents and purposes the same as ground 1, which says their existence suspends the prerogative as regards article 50.

I find it hard to see how these arguments can succeed in the High Court. Let's see if the claimants' legal teams can prove me wrong.

{ 3 comments… read them below or add one }

1 Anonymous October 13, 2016 at 15:52

I agree. These three grounds are not strong and they are, to me, missing the strongest argument.

2 Flack November 3, 2016 at 10:49

“Article 50 notification will not remove anyone’s EU citizenship: if that happens, it’ll be done by a subsequent UK-EU withdrawal treaty and by an Act of Parliament giving effect to it.”

– That’s not strictly true though. If the government fails to get any kind of treaty with the EU within two years, the UK automatically ceases to be a member and all the EU citizenship rights UK citizens were granted by successive treaties are lost. So triggering article 50 and then doing nothing effectively cancels all prior EU treaties (Lisbon, Maastricht, etc.) that were passed by parliament after extensive discussions and a vote.

3 Jennifer Hornsby November 4, 2016 at 16:22

What about triggering Article 50 and then thinking better of it?
Article 50 has: “A Member State which decides to withdraw shall notify the European Council of its intention.” This supports Lord Kerr’s saying (and he should know) that “Brexit is not irrevocable”. Although the judgement speaks of ‘giving notice to withdraw’, an A50 notice is of an intention. And one can intend to do things and change one’s mind. (A rational person changes her mind if she thinks it better not to do what she had intended to.)
It now appears wrong to say that once notification is given rights would inevitably be lost Not that this makes an actual difference.
If I understand, it was argued that if domestic law cannot be changed by prerogative power, then prerogative power must not be exercised so as to render it inevitable that there is a change in domestic law. But presumably it can still be argued that prerogative power must not be exercised if it is possible that the exercise would lead to a change in domestic law in circumstances which Parliament was powerless to intervene to prevent.

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