Why the High Court got the law wrong about Brexit

by Carl Gardner on November 4, 2016

Some reactions to the High Court’s judgment in the article 50 case, R (Miller) v Brexit Secretary, have been ugly, excessive and ridiculous. It’s excessive too to see the judgment as blocking Brexit, or as creating a constitutional crisis. It does neither thing. I’ve no doubt that if the judgment is upheld on appeal to the Supreme Court, the government will obtain the one-clause bill it’d need authorising it to give notice of Brexit under the famous article 50.

But the judgment is surprising (I expected it’d agree with my view), it’s problematic, and I think it’s wrongly decided. Here’s why. I’m afraid my explanation is long: but I think it needs to be.

The basic flaw

In broad terms, what’s happened is that two recently discovered or “upcycled” legal doctrines—the theory that there is a higher class of “constitutional” statutes and what’s called the “principle of legality”—have combined with, I think, confusion about the effect of the European Communities Act 1972, and created a heady and intoxicating legal brew. Deeps draughts of that stuff have impaired the bench’s judgement so much that they’ve thought constitutional principle required them to take and upside-down approach to statutory interpretation, and read the 1972 Act in a way Parliament can surely never have intended either in 1972 or since.

The underlying principle

First, it’s important to be clear what legal principle the judges have tried to give effect to. It’s not that there’s anything really unusual about article 50 that means ministers can’t “trigger” it using prerogative powers, or even that doing so would deny people their rights. It’s a much broader constitutional principle that the court derives from the 1610 Case of Proclamations (paragraph 27 of yesterday’s judgment) that the executive by prerogative

cannot change any part of the common law, or statute law …

and from the Zamora case in 1916 (para. 29 of the judgment):

The idea that … the Executive, has power to prescribe or alter the law to be administered by Courts of law in this country is out of harmony with the principles of our Constitution.

That’s worth remembering: the High Court thinks triggering article 50 would change the law in this country, and that no change to the law of any kind can be made by doing so. The principle is much wider than, for instance, one that only protects fundamental constitutional or human rights. But almost immediately after explaining it, the court undermines it by accepting (para. 33) that

treaties can have certain indirect interpretive effects in relation to domestic law …

Which they certainly do. The courts presume Parliament to legislate in accordance with the UK’s international obligations which means, if you think about it, that merely entering into a treaty alters our law here to some extent. But, the court says (§33)

this does not affect the basic position that the Crown cannot through the use of its prerogative powers increase or diminish or dispense with the rights of individuals or companies conferred by common law or statute or change domestic law in any way without the intervention of Parliament.

But the exception surely does blow a hole through “the basic position” as outlined by the High Court. Judges themselves have said international obligations alter to some extent the law in this country.

EU law rights

Next, let me turn to what I think are the court’s misunderstandings about the EU rights, and the effect the 1972 Act had in bringing them in to our legal system. First, the court at §34 says

a direct link exists between, on the one hand, rights and obligations arising through action taken on the international plane – by entry into and continued membership of the … [EU] … and creation of EU law in the relevant Treaties and by law-making institutions of the European Union – and, on the other, the content of domestic law. This is the result of a combination of principles of EU law, including principles of direct effect of EU law in the national legal systems of Member States, and the terms of the ECA 1972 …

On its face this is unobjectionable; but I wonder whether underlying the judgment is an unspoken assumption that the EU law concept of direct effect makes these treaties and this legislation unique by giving EU law some independent status in our own law. That’s certainly not right: it’s only by artificial statutory domestication of the concept of direct effect through the ECA 1972 that EU law has effect here. The passage I’ve just quoted leaves some room for doubt about how clearly the High Court saw this, and my slight doubt are increased by §42 of the judgment where I think the court may not be quite right to imply EU law requires the concept of direct effect to be explicitly transposed into national legislation.

The judges go on to set out (§§57-66) three categories of “rights” they say are relevant. The first, “category (i)” are rights like equal pay or working time restrictions that can be replicated nationally. This is unproblematic. The second, “category (ii)”, are rights British citizens enjoy in other countries because of EU law, such as the right to take a job in France and not be discriminated against. It’s far less obvious why the court thought these rights—which cannot possibly exist in our domestic UK law—are relevant. The third “category (iii)” is what you might call pure institutional EU rights such as the right vote for MEPs or to ask a court to refer a point of interpretation to the European Court of Justice.

The High Court says article 50 notification would remove category (i) rights, but of course it would not: there might be a “soft Brexit” in which many of those rights are actually retained. It’s interesting that (§64) that the court needs to bolster its reasoning by referring to the ancillary loss of the category (i) right to ask for a reference to the ECJ.

But the reasoning of the court concerning category (ii) rights is very odd. These are plainly nothing to do with UK law or with Parliament: your or my free movement rights in France derive entirely from whatever effect the EU treaties have or are given in French law by French legislators and courts. And the High Court admits (§66) that

In a highly formalistic sense, this may be accurate

which is now my favourite euphemism for “it’s right but I reject it”. The High Court is quite correct (§66) to say

withdrawal from the European Union pursuant to Article 50 would undo the category (ii) rights

but what’s wrong, bearing in mind the constitutional principle underlying the judgment, is to think undoing category (ii) rights would change UK law in any way. It wouldn’t.

Only category (iii) rights actually fit unproblematically into the court’s analysis. They would undoubtedly and necessarily end at the moment (not of article 50 notification, but) of Brexit. So the court’s reasoning is actually based on the extinction of fewer rights, and the alteration of less UK law, than it seems. And it really only comes down to EU citizenship and the right to vote for MEPs or stand as one. The supposed right to ask for a reference to the ECJ is actually a power for courts to decide to make a reference. It’s not a substantive right at all, but just a procedural right to make an argument in a UK court.

An intriguing point, in passing

It’s interesting at this point to look at §70, which mentions without judicial comment that the European Parliament became directly elected in 1979. One wonders, if the High Court is right, what legal power the government had in the 1970s to agree to the change before MPs passed the legislation. Remember, it’s not just prerogative action that (in the judges’ view) removes rights that they say’s unlawful; the idea is that it’s unlawful by prerogative to alter the law in any way.

The real meat of this judgment, though, and where it really goes astray, is in the discussion on statutory interpretation from §77 and especially from §82.

Interpretation, and the two questionable principles

At para. 44 the court had mentioned the principle put forward by Lord Justice Laws in Thoburn that the ECA 1972 is a “constitutional statute”, with the technical legal consequence that it can only be amended or repealed explicitly. That’s always been an unconvincing theory, not much backed up by subsequent cases from higher courts. Frankly, it’s wrong. The way the ECA 1972 interacts with later statutes is (as seems to me obvious) because of its wording and what Parliament must have meant by it, rather than its status. But even if it’s right, Laws’s “constitutional statute” theory is limited to shielding the 1972 Act from accidental repeal.

In yesterday’s judgment, though, the thought seems to have grown into a wider proposition (that I detect underlying §§81-88 of the judgment) that a cross-cutting constitutional principle must implied into a “constitutional statute” that neither Parliament except by express words nor government can do anything that would on any view affect it in any way at all. It finds eventual expression in §88:

Since in enacting the ECA 1972 as a statute of major constitutional importance Parliament has indicated that it should be exempt from casual implied repeal by Parliament itself, still less can it be thought to be likely that Parliament nonetheless intended that its legal effects could be removed by the Crown through the use of its prerogative powers.

This is I think a vague and unjustified expansion of “constitutional statute” theory. Even if Laws LJ in Thoburn was right, his principle was about the way later legislation affects the 1972 Act. It has nothing to do with the prerogative.

This expansion of “constitutional statute” thinking has happened because the court has mixed it with the “principle of legality” that’s especially fashionable at the moment (in Evans in the Supreme Court, notably). According to that principle, which Lord Browne-Wilkinson traced in Pierson to academic writings and to a series of cases in the 1980s and 1990s, Parliament is presumed not to have intended to change the common law unless it has clearly indicated such intention.

Extraordinarily, the High Court has now reversed the principle in such as way as to presume that Parliament in 1972 did change the common law (by curtailing prerogative powers) although there are no clear words in the 1972 Act doing so.

It’s clear, then, that the heart of the problem in the judgment is the “flip” the court makes in §84 onwards, when it rejects the argument that

language would need to be found in the ECA 1972 before it could be inferred that Parliament intended to remove the Crown’s prerogative power

and concludes the opposite, that clear language would need to be found preserving the prerogative. This is, in my view, the fundamental flaw in the High Court’s reasoning.

The Rees-Mogg case

At §§90-91 the High Court distinguishes the Rees-Mogg case that I think raises the same essential issue as article 50. It does so by saying Rees-Mogg was not a general ruling that prerogative powers had survived the 1972 Act, but held merely that ministers could ratify the Maastricht treaty by prerogative because the social protocol did not change UK law.

Frankly, this is an implausible and untenable reading of the Rees-Mogg case. It’s plain if you read the judgment that what the High Court calls the “nub” of the reasoning in Rees-Mogg was actually a back-up argument bolstering its primary legal conclusion, that

When Parliament wishes to fetter the Crown’s treaty-making power in relation to Community law, it does so in express terms … There is in any event insufficient ground to hold that Parliament has by implication curtailed or fettered the Crown’s prerogative to alter or add to the E.E.C. Treaty.

Finally, paragraph 93 of yesterday’s judgment is odd. In it, the court identifies what it sees as textual support for its interpretative approach—but the points it makes are unpersuasive. Its point (3) in particular is very opaque. And what need, anyway, for textual support to bolster a reading that (according to the judges’ reasoning) follows implicitly from constitutional principle? Paragraph 93 reads, to me, like a suspiciously overdetermined and thin belt adding little to the courts’ already dodgy braces.

I wish I thought the Supreme Court would reverse it

If this judgment is correct, its consequences are, I think, radical and surprising. If in 1972 Parliament really did end the government’s power by prerogative to (as the court thinks) change UK law by doing anything that alters EU law, then surely every change to EU treaties agreed by Prime Ministers has been unlawful. Why, if this judgment stands, was it lawful for Mrs Thatcher to agree to the Single European Act? Why was it lawful for Mr Blair to sign up at Amsterdam to the Social Chapter? The High Court implies in its treatment of Rees-Mogg that he had no prerogative power to do so.

The list of worrying consequences goes on. What power have ministers ever had to agree in Brussels to EU measures such as Directives that (as the High Court sees it) change the law in this country when adopted? It seems to me at least arguable that, according to the High Court, all of this was unlawful—and that, to act lawfully now, we must all behave as if Britain were still in the European Community as it existed on 1 January 1973, before ministers by prerogative “unlawfully” made any changes. The solution to this conundrum can’t be that Parliament later “cured” ministerial unlawfulness by confirming the changes they’d agreed; if that were the answer, then the government’s planned “great repeal bill” could cure the supposed unlawfulness of article 50 notification.

I wish I thought the Supreme Court would reverse this—a judgment that’s tempered the twin edges of constitutional statute theory and the “principle of legality” and made of them a weapon that can be aimed at Parliament as it was, yesterday, at government. But the Supreme Court likes the principle of legality too much. We can hope for some dissent there, but I expect it to uphold this wrong turning in constitutional law.

{ 38 comments… read them below or add one }

1 Alan Bell November 4, 2016 at 18:46

“Why, if this judgment stands, was it lawful for Mrs Thatcher to agree to the Single European Act?”
presumably because the European Communities (Amendment) Act 1986 went through parliament
http://www.legislation.gov.uk/ukpga/1986/58

“Why was it lawful for Mr Blair to sign up at Amsterdam to the Social Chapter.”
no clue. (it was in the manifesto, there were research papers, I got bored looking for an act or relevant division).
For sake of argument, lets say both were totally wrong, have no legitimacy and were an ultra vires use of prerogative. What does it matter now? We are not on a practical level going to revert to 1973 law, and our law is going to be totally and utterly messed up anyway with the repeal act (there are a heap of activities like processing personal data that will only be legal to do outside of the country).

2 John November 4, 2016 at 18:53

My understanding of the decision was that the prerogative couldn’t be used to trigger art.50 because it would render the ECA72 useless and remove the various EU rights Britons have accumulated. Parliament had to pass the ECA, so the government cannot use the prerogative to effectively repeal it through the prerogative.

This analysis also holds true when you consider that triggering art.50 and taking no further action would be the same as repealing the ECA with regards to Union law in the UK. Such a legislative change cannot be done using the prerogative.

Or am I way off?

3 Josh November 4, 2016 at 19:28

Whilst details of the court judgement are both complex and counterintuitive, surely the main upshot of this is that the referendum itself was poorly framed in both legal and constitutional terms making it a weak foundation to build upon. Doubly so as it is non-binding.

With so called ‘hard-brexit’ technically ruled out by elements of the Conservative Party manifesto (single market membership was part of their platform for election), wider legal concerns – though valid – are perhaps less pressing than the fundamentally ‘unconstitutional’ outcome currently being pursued by Govt. ministers.

4 Anonymous November 4, 2016 at 19:57

It’s a great analysis, Carl, and without going into all the things I don’t agree with about it (because the Court’s analysis is FAR more rooted in established historical limitations on the prerogative than you say, viz. Articles 1 & 2 of the Bill of Rights), I’ll focus on the one valid point that you do make, I think. That is the Court’s struggle to find rights that are affected, as in it (and Lord Pannick’s) categories (i), (ii) and (iii) analysis, which must be flawed. It must be flawed because it must be, and has always been accepted, that the exercise of the prerogative in international affairs will have some effect on domestic affairs, not always directly but often indirectly. There is also the valid example of the Social Chapter that you cite, but I don’t think you mention (I haven’t scoured your article word by word) that Amsterdam had to be ratified by parliament before it became law, so it wasn’t an example of prerogative powers by-passing parliament. However, without distinguishing between the categories, I think the broader point you make about (i) to (iii) rights is valid. Using prerogative powers internationally has and must be allowed lawfully to have some effect on domestic law. Despite the votes in parliament this century concerning Iraq, Lebanon and Syria, waging war is an example. That can be done by prerogative alone, and can have huge knock-on effects internally, including legally. One also, in support of your point, has I think to distinguish between losing rights that are only exercisable in Europe, and are lost as a result of leaving the treaty, and those that are exercisable in the U.K. Obviously the prerogative power can be used to make and break treaties and obviously if you leave a treaty, you lose the right of freedom of movement in Europe, but that doesn’t result from a change of U.K. law, but from leaving the Treaty (a permissible use of prerogative powers). Obviously if you leave the EU, you can’t move around freely in it any more (nor it in you), or vote in its elections. I agree, we have to do better than those examples. I think we have to find important UK legal rights that were lost in the U.K., and make the use of the prerogative powers impermissible, and at the moment all I can think of while I rush to repair this broken post are those affecting the “direct effect” of European law (Directives, ECJ decisions) irrespective or, and prior to, implementation. Additionally, to strip ex-pats of their rights of residence in Europe also affects their U.K. rights because it strips away rights gained abroad that were lost in the U.K. as a result of their absence, based on a recipricocity that no longer exists. There are some “statelessness” effects. I’ll return when I’ve thought of more!

5 Robin Levett November 4, 2016 at 20:54

Some comments:

“But the exception surely does blow a hole through “the basic position” as outlined by the High Court. Judges themselves have said international obligations alter to some extent the law in this country.”

Only to the extent of an indirect interpretive effect. If you were arguing that invocation of Article 50 would only have indirect interpretive effect, than this might help the argument; but you’re not, and Laker Airways surely answers the point.

“The High Court says article 50 notification would remove category (i) rights, but of course it would not: there might be a “soft Brexit” in which many of those rights are actually retained.”
But that is by the by; if retained, that would be not an effect of invocation of Article 50, but of negotiations producing a new treaty between the relevant parties restoring those rights.

“…your or my free movement rights in France derive entirely from whatever effect the EU treaties have or are given in French law by French legislators and courts.”

Since the treaty entered into by the UK with, inter alia, France provides for reciprocity of rights, this isn’t correct. As a result of UK entry into the Treaties and implementation of the rights granted into domestic law, UK citizens in France are not only granted the same rights of free movement as French citizens in the UK, but they are also granted the right to enforce them as a matter of domestic law in French courts because, again, the treaties require France to grant both the substantive and the procedural right.

“According to that principle, which Lord Browne-Wilkinson traced in Pierson to academic writings and to a series of cases in the 1980s and 1990s, Parliament is presumed not to have intended to change the common law unless it has clearly indicated such intention.”

The principle (admittedly obiter dicta in a minority opinion) is distilled in the following passage:

“From these authorities I think the following proposition is established. A power conferred by Parliament in general terms is not to be taken to authorise the doing of acts by the donee of the power which adversely affect the legal rights of the citizen or the basic principles on which the law of the United Kingdom is based unless the statute conferring the power makes it clear that such was the intention of Parliament.”

Not the common law generally; particularly not the prerogative; but basic rights and principles protecting the individual citizen.

“Why, if this judgment stands, was it lawful for Mrs Thatcher to agree to the Single European Act?”

Because signing up to the Single European Act had no effect in our domestic law until Parliament ratified it and by the European Communities (Amendment) Act 1986 added it to the list of Treaties in s1(2), surely. Which is precisely why Rees-Mogg was decided as it was. I don’t agree that the first two paragraphs from that judgment quoted at para 90 are divorced from one another, which your reading requires. Remember that Rees-Mogg’s Counsel (one Mr Pannick QC) was arguing that the prerogative could not be used to ratify the Protocol because it would “have effect not only on the international plane but also, by virtue of section 2(1) of the Act, on the domestic plane as well”. The answer given to that argument by Lloyd LJ (giving the judgment of the Divisional Court) is that it is an unobjectionable use of prerogative precisely because its effects were confined to the international plane. Had it had domestic effect, the decision would clearly have gone the other way; his conclusion was that “We conclude that the Government would not, by ratifying the Protocol, be altering or affecting the content of domestic law without Parliamentary approval”; that was the mischief that would have led to curtailment of the prerogative power.

“According to that principle, which Lord Browne-Wilkinson traced in Pierson to academic writings and to a series of cases in the 1980s and 1990s, Parliament is presumed not to have intended to change the common law unless it has clearly indicated such intention.”

The principle (admittedly obiter dicta in a minority opinion) is distilled in the following passage from Lord Browne-Wilkinson’s judgment:

“From these authorities I think the following proposition is established. A power conferred by Parliament in general terms is not to be taken to authorise the doing of acts by the donee of the power which adversely affect the legal rights of the citizen or the basic principles on which the law of the United Kingdom is based unless the statute conferring the power makes it clear that such was the intention of Parliament.”

Not the common law generally; particularly not the prerogative; but basic rights and principles protecting the individual citizen.

6 Theelaga November 4, 2016 at 22:17

I thoroughly enjoy this debate / argument, as there appears to be little constructive analysis or debate on bbc or elsewhere. However I do worry about terms such as ‘it seems to me’ or ‘could be construed as ‘. The clear points for me as ‘a man on a London Omnibus ‘ are: Referendum was poorly drafted and poorly informed most who voted for Brexit still think migration will simply end, whereas reality is there WILL be a deal that allows some movement, I wont go into all the other points that should have been aired correctly before the referendum, save to say the British people DIDNT know what they were voting for so parliament must discuss and agree terms, this cannot be left to a privileged few biased ministers. Difficult question for me is whether Ministers will ever be properly informed and will vote a) on that information b) on the basis of how their constituents expressed their opinion or c) on political grounds.

7 Matthew (see 'Anonymous' above) November 5, 2016 at 04:10

Still struggling to find non-Treaty rights affected, on the premise that Treaty rights can be withdrawn by way of prerogative powers, but non-Treaty rights cannot. But maybe that’s the wrong approach. Maybe the Claimant didn’t need to go that far, and just needed to show that implied repeal of any kind took the prerogative off-limits domestically. Because clearly a referendum described as “pre-legislative” in the briefing paper cannot easily then be argued to have a legitimate legislative effect. Maybe that’s it, in a nutshell?

8 Anonymous November 6, 2016 at 11:08

Parliament voted on all major EU/EC treaties. Blair didn’t just agree to it, Major didn’t just agree to Maastricht. Parliament voted on all six major EC/EU treaties. Bit rich to forget that and claim to know better than High Court.

9 PlainSpeaker November 6, 2016 at 11:46

I write as a non lawyer who ventures into this debate with some trepidation. Is the invocation of Article 50 reversible or not? At the High Court all parties agreed that it was not reversible – but this is the crux. If it is not reversible, its invocation inevitable leads to the loss of rights that I presently enjoy (for example, EU citizenship) – can that right be removed by exercise of the prerogative having been conferred by statute following Maastricht? On the other hand if Art 50 is reversible (before the two year guillotine falls), its invocation does not inevitably lead to loss of rights and consequently the prerogative can be used. It would be ironic if the outcome of all this was a referral to the ECJ for a ruling on reversibility.

10 Robin Levett November 6, 2016 at 16:54

On the other hand if Art 50 is reversible (before the two year guillotine falls), its invocation does not inevitably lead to loss of rights

How does that necessarily follow? Even if the notification is unilaterally reversible, how is that different from the position when it can be withdrawn by consent? It still requires “X” to happen for the rights not to be lost. In the abence of “X”, away go the rights.

11 major cynic November 6, 2016 at 17:22

I wonder if I might draw to everyone’s attention that the Royal Prerogative in relation to European Treaties has been subrogated to Parliament because Queen’s Consent was sought and obtained prior to Second readings of all Bills (except the 1975 and 2015 Referendum bills which were not intended to create binding obligations).

Details on Queen’s Consent may be found as a pdf via the Office of Parliamentary Counsel.

The Supreme Court can deal with this case in under 5 minutes without ever considering Article 50 because no member of the executive can do a thing without express approval of Parliament as the Prerogative does not exist.

12 PlainSpeaker November 6, 2016 at 18:13

In reply to Levett, if the notice given under Article 50 is reversible then that implies the possibility of remaining in the EU. Thus the giving of notice by itself does imply subsequent legislative action – for example repeal of the ECA. On the other hand, irreversibility implies we leave the EU after two years (whether we have a deal or not) and consequent legislative action must follow. Such legislative action will remove rights I presently enjoy.

13 Robin Levett November 6, 2016 at 19:22

In reply to Levett, if the notice given under Article 50 is reversible then that implies the possibility of remaining in the EU.

If the Art 50 notice can be withdrawn by consent (and it can) then that also implies the possibility of remaining in the EU; but withdrawal (by consent or unilaterally) will have to happen to avoid inevitable loss of rights.

14 PlainSpeaker November 6, 2016 at 19:51

In reply to Levett – I think we basically agree except that you seem very sure that Art 50 can be withdrawn (either by consent or unilaterally). This was not the view of all parties at the High Court (para 10). In fact they all took the hard view that notice once given cannot be revoked, nor can the notice given be conditional. Now my own view is that Art 50 notice can be revoked by the mutual consent of the UK and the European Council (by QMV?), but that the UK alone cannot unilaterally withdraw its notice. I take that view because Art 50(2) has enough ambiguity to allow for such an outcome by consent. Nevertheless, If the hard view prevails, once Art 50 is invoked we are out, agreement or not.

15 Robin Levett November 6, 2016 at 20:17

In reply to Levett – I think we basically agree except that you seem very sure that Art 50 can be withdrawn (either by consent or unilaterally).

I don’t think A50 notice can be withdrawn unilaterally; the question was what difference it makes if that is incorrect. You suggested that:

that implies the possibility of remaining in the EU

whereas:

irreversibility implies we leave the EU after two years (whether we have a deal or not) and consequent legislative action must follow.

I don’t agree there’s any meaningful distinction between unilateral reversibility and unilateral irreversibility.

16 Anonymous November 7, 2016 at 09:45

“What power have ministers ever had to agree in Brussels to EU measures such as Directives that (as the High Court sees it) change the law in this country when adopted?”

Well, the text of such measures are deposited in Parliament and subject to scrutiny by committees of both Houses; and under the scrutiny reserve resolutions of each House they may not be agreed to in Council by Ministers unless the document in question is cleared from scrutiny by the committees, or (in the Commons, in the case of legally and/or politically important documents) the proposed action of Ministers is approved by resolution.

17 Barrack Room Lawyer November 7, 2016 at 11:14

The Supreme Court will overturn the HC decision. It will hold that EU rights enshrined in domestic law are contingent not absolute rights. The contingency depends on the UK being a member of the EU. Further, triggering article 50 will not of itself extinguish those rights. They will be extinguished when the contingency no longer holds. That will be when the Great Repeal Act repeals ECA 1972. The repeal of ECA 1972 in the GRA will take effect when article 50 expires. EU rights will of course endure following service of Art 50 until its expiration.

18 TDS November 7, 2016 at 11:31

Another non-lawyer here. First of all thanks for this very interesting debate.

Also thanks for bringing up the (ir)reversibility of triggering Art 50 (either unilaterally or by QMV). This is a hugely underdiscussed issue and I’m quite frankly surprised all parties at the HC appear to think this is an irreversible notification. Nothing in Art 50 appears to indicate anything of the sort as it is merely the notification of an intention, which starts the two year clock.

This is also the view held by a former director-general of the Council of the European Union’s Legal Service as penned down in an FT article from 1 Sept. which you can find here:
https://www.ft.com/content/b9fc30c8-6edb-11e6-a0c9-1365ce54b926

In addition, in the absence of any wording in Article 50 about its (ir)revocability (so it being merely a unilateral declaration of intent), wouldn’t one fall back on international treaty law, in which members are free to unilaterally revoke an earlier unilaterally declared intent to leave an international treaty as a result of a change of policy/government, if this comes to pass before the member has formally left the treaty?

Would be interested in any views on this.

19 Karen x November 7, 2016 at 14:17

engaging comments but please read the real thing:

TFEU Article 50
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. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament. 3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.
A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.
5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49 [my addition: i.e. reapply to join]

20 Robin Levett November 7, 2016 at 16:03

Further, triggering article 50 will not of itself extinguish those rights. They will be extinguished when the contingency no longer holds. That will be when the Great Repeal Act repeals ECA 1972.

So if A50 notification is givena nd not withdrawn, no agreement to extend the 2 years is reached, and the Great Repeal Act doesn’t make it onto the statute book – what then at A50 + 2yrs 1 day? Is EU law still part of UK domestic law?

21 PS November 7, 2016 at 16:16

I am not a lawyer either, so apologies, but I too am troubled by these category (ii) rights.

In paragraph 66 the judgement says “…Parliament knew and intended that enactment of the ECA 1972 would provide the foundation for the acquisition of British citizens rights under EU law which they could enforce in the court of other Member States.”

The EU was created by the Maastricht Treaty over 20 years later. It is quite a stretch to say that Parliament intended granting of EU rights at that stage. That would come from later legislation and amendments, but not from the ECA as enacted which was concerned with the European Community only at that time.

My main problem is with something like this sequence though:

1. Government signs new Treaty using Royal Prerogative.
2. France ratifies treaty, UK citizens acquire rights in France at this time.
3. Parliament ‘ratifies’ treaty, bringing it into domestic law

Then some time later
4. Government signs new/amends Treaty using Royal Prerogative
5. France ratifies new/amended Treaty. UK citizens’ rights in France modified or extinguished immediately by this ratification.
6. Parliament subsequently ‘ratifies’ new/amended Treaty for UK domestic law.

This will certainly have happened as new Treaties (Maastricht, Amsterdam, Lisbon etc.) have come into force changing rights etc. over time. There is a period between steps 5 and 6, where the act of using the Royal Prerogative as per step 4 has led to a change or loss of rights for UK citizens in France before Parliament had a chance to bring the new Treaty into force. So category (ii) rights are routinely changed by use of the Royal Prerogative even now.

Is it the case that between steps 5 and 6, UK citizens in France can sue the French government for the ‘old’ rights from the first treaty, because the UK Parliament has not ratified the new Treaty yet?

22 Barack Room Lawyer November 7, 2016 at 21:26

Reply to Levett

“So if A50 notification is givena nd not withdrawn, no agreement to extend the 2 years is reached, and the Great Repeal Act doesn’t make it onto the statute book – what then at A50 + 2yrs 1 day? Is EU law still part of UK domestic law?”

ECA 1972 would remain on the statute book but domestic EU rights would not. ECA 1972 refers only to rights ‘from time to time created or arising by or under Treaties’. TEU including Art. 50 is part of ECA 1972 and so a reading of the statute coupled with the fact of Art 50 having expired would demonstrate that domestic EU rights no longer exist. Shoot me down in flames.

23 Robin Levett November 7, 2016 at 21:59

@PS:

,blockquote>4. Government signs new/amends Treaty using Royal Prerogative
5. France ratifies new/amended Treaty. UK citizens’ rights in France modified or extinguished immediately by this ratification.
6. Parliament subsequently ‘ratifies’ new/amended Treaty for UK domestic law.

This will certainly have happened as new Treaties (Maastricht, Amsterdam, Lisbon etc.) have come into force changing rights etc. over time. There is a period between steps 5 and 6, where the act of using the Royal Prerogative as per step 4 has led to a change or loss of rights for UK citizens in France before Parliament had a chance to bring the new Treaty into force. So category (ii) rights are routinely changed by use of the Royal Prerogative even now.

Is it the case that between steps 5 and 6, UK citizens in France can sue the French government for the ‘old’ rights from the first treaty, because the UK Parliament has not ratified the new Treaty yet?

No. The Treaties do not come into force as against a state immediately upon ratification; they come into force at an agreed date and once all have ratifed.

24 Robin Levett November 7, 2016 at 22:13

@BRL:

ECA 1972 would remain on the statute book but domestic EU rights would not. ECA 1972 refers only to rights ‘from time to time created or arising by or under Treaties’. TEU including Art. 50 is part of ECA 1972 and so a reading of the statute coupled with the fact of Art 50 having expired would demonstrate that domestic EU rights no longer exist. Shoot me down in flames.

So :

The contingency depends on the UK being a member of the EU. Further, triggering article 50 will not of itself extinguish those rights. They will be extinguished when the contingency no longer holds. That will be when the Great Repeal Act repeals ECA 1972. The repeal of ECA 1972 in the GRA will take effect when article 50 expires.

isn’t quite correct – or, rather the “when the GRA…”etc refers to time, not causation.

The problem is that the Treaties applying under the ECA are not those in existence from time to time; they are those that are defined as “Treaties” in s1(2). As new Treaties are signed, they are added to that list, either by OiC under s1(3) or by statute, and it is upon their listing that they take domestic effect.

25 Barack Room Lawyer November 7, 2016 at 23:14

To Robin Levett,

“So if A50 notification is givena nd not withdrawn, no agreement to extend the 2 years is reached, and the Great Repeal Act doesn’t make it onto the statute book – what then at A50 + 2yrs 1 day? Is EU law still part of UK domestic law?”

What then would be your answer to your above scenario, imaging that Cameron had served the art 50 notice immediately following the referendum using royal prerogative ? Would a court hold that yes, that Notice repealed the ECA 1972 ? If no, by what means would it have removed EU rights in english law ?

26 Robin Levett November 7, 2016 at 23:30

What then would be your answer to your above scenario, imaging that Cameron had served the art 50 notice immediately following the referendum using royal prerogative ? Would a court hold that yes, that Notice repealed the ECA 1972 ? If no, by what means would it have removed EU rights in english law ?

The Divisional Court would say that because there has been no decision to leave in accordance with the UK constitution no valid Art50 notice was served and hence we remain…

It might also point out that there is a procedure for changing the definition of “Treaties” under the Act – by OiC under s1(3). A statute would also do; but exercise of the RP would not.

It might also point out that it is irrelevant that Art 50 is part of one of the Treaties; unless it was intended under the Treaties to “be given effect to” or “used” “in the United Kingdom” it does not form part of domestic law. Nothign in Art 50 suggests it is intended under the Treaties to have effect other than on the international law plane – ie not “in the United Kingdom”.

27 Barack Room Lawyer November 8, 2016 at 01:23

Yes, I see. Thank you. It is conceivable though that the submission by RP of notice to leave could be both valid for the purposes of A50 (an act done on the international plane) but invalid in so far as it purported to amend domestic law. The government would be fine with that because it fully intends to legislate to repeal ECA. The possibility that GRA might not pass would be insufficient to invalidate such a view if it were otherwise sound, surely.

28 Robin Levett November 8, 2016 at 01:53

@BRL:

Rees-Mogg throws some light on this. The Divisional Court decided that HMG could ratify the Social Protocol to Maastricht precisely because while the Protocol had effect on the international plane, our opt-out meant that it had no effect on the domestic plane. It seems clear (to me, albeit Carl disagrees) that the logic is that had the protocol had direct effect on the domestic plane, the RP could not have been used to ratify it at all.

29 Barack Room Lawyer November 14, 2016 at 17:22

@Robin Levett :

Kind of what I was trying to get at in post 31 :

http://www.independent.co.uk/news/uk/politics/theresa-may-brexit-article-50-court-ruling-overturn-citizens-rights-british-uk-latest-a7412606.html

Do you think the appellant may run an argument along these lines ?

30 Robin Levett November 15, 2016 at 09:52

@BSL:

That looks to be a version of what HMG tried in Laker; and failed.

31 Brian Barder December 11, 2016 at 19:26

(I’m not a lawyer.) Since there seems to be disagreement among legal authorities over the hugely important questions of the irrevocability (or otherwise) of, and the [im]possibility of attaching conditions to, an Article 50 notification, I’m at a loss to understand why HMG has nailed its colours so firmly to the mast of irrevocability and impossibility of conditionality, surely as blatant an example of self-harming as Mrs May’s equally inexplicable decision to set a public deadline for lodging an A50 notification? Why close off the options so decisively when the question could easily have been left open pending a possible ruling by the European Court? There seems to be a death wish dictating policy here. (I realise that this is essentially a political rather than a legal point.)

32 Andy J December 16, 2016 at 14:53

“… the hugely important questions of the irrevocability (or otherwise) of, and the [im]possibility of attaching conditions to, an Article 50 notification.”

While these may be hugely important to you and to many who are trying to find ways reverse or at least water down the Brexit process, they are utterly irrelevant to the relatively narrow question which the High Court, and now the Supreme Court, must answer. I refer you to Lord Neuberger’s closing remarks at the end of the UKSC hearing.
Secondly, further delays or obfuscations merely serve to damage the UK economy because the City and businesses want certainty and clarity about the way ahead.

33 Brian Barder December 28, 2016 at 16:41

To Andy J: I was not suggesting that the Supreme Court of the UK could or should pronounce on the question of whether an Article 50 notification can be revoked or have conditions attached to it. I referred only to the European Court in that context. I expressed surprise that in the government’s submission to the UK courts it should have stated so categorically its formal view that such a notification will be both irrevocable and unconditional. The opposite view, or an opinion that there were two conflicting and incompatible opinions on the matter, both tenable, would surely have strengthened the Crown’s case that the prime minister was entitled to lodge an Article 50 notification without the need for the prior approval of Parliament, since a notification that could be revoked would not necessarily in itself lead to Britons losing rights given to them by Parliament. It seems strange for HMG to have deprived itself of this possible argument unnecessarily and prematurely. But as I said earlier, I am not a lawyer.

34 p January 24, 2017 at 13:38

The high court judge is in grave danger of commiting high Treason!. He is going against the vote of the British people for Brexit and Teresa May.
He is opening himself up to high TREASON.
He could be guilty of this now. Does he know the implications of what hes just done?

35 Matt Flaherty January 27, 2017 at 11:58

P (above),

There appear to be a great many things you don’t know.

1) Since this comment comes after the Supreme Court judgement, I have to assume you are responding to that. This article is about the High Court judgement, of which the present case was an appeal.
2) Is a court a he? I don’t think so. Even in the case of the Divisional (High) Court, the case was decided by three people. The Supreme Court case was decided by 11 justices, which 8 forming the majority.
3) Treason? Well, that’s funny. The full title of the case is “R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant)”, where R is Regina, i.e. the Queen. So in other words, the Queen on behalf of private citizens is responding to an appeal by the government of a ruling made by the Division Court against it. The case is effectively her majesty the Queen against the government over an attempt to improperly use her Prerogative Power to sidestep Parliament.
4) Just to round things off, the EU Referendum Act had no provision for its outcome to be implemented. It was enacted as a non-binding, advisory referendum with no legal effect. Its effect is purely political.

36 Matt Flaherty January 27, 2017 at 14:30

Carl,

“It’s interesting at this point to look at §70, which mentions without judicial comment that the European Parliament became directly elected in 1979. One wonders, if the High Court is right, what legal power the government had in the 1970s to agree to the change before MPs passed the legislation. Remember, it’s not just prerogative action that (in the judges’ view) removes rights that they say’s unlawful; the idea is that it’s unlawful by prerogative to alter the law in any way.”

How is this not covered by s1(3) of the ECA which stipulates that any treaty declared in an Order of Council to be regarded as one of the Treaties is to be regarded as one (in future after being approved by resolution)? It recognises the Crown’s prerogative to negotiate treaties, and s2(1) allows for those Treaties as negotiated from time to time to be available in law without further enactment. Lord Reed (IMHO) goes astray particularly in p209 of his UKSC dissent when he, like you, suggests that Miller’s interpretation means that prior approval is needed before negotiating in the first place. It doesn’t follow, since the treaty (negotiated or otherwise) does not become part of the Treaties until a resolution is passed in both Houses.

Royal Prerogative can sometimes affect the law of the land by changing the facts upon which the law is applied, and to whom the law may apply and under what circumstances. s1(1) gives ministers the power to make Treaty laws available in UK law without further enactment in order to allow the UK to comply with its international obligations. It is essentially saying get on with making EU law available, you don’t need to bother us. Later enactments set some restrictions on this when the EU institutions would be enlarged or the UK influence diminished. Would it make sense in this context to allow the executive to nullify the Treaties altogether, thereby diminishing the UK’s influence to nil? It’s hard to see how that view can be supported. This would be tantamount to the Crown frustrating the purpose of a statute by emptying it of content.

Judges do not contend that RP cannot be used to change the law in any way, as you point out yourself. Neuberger elaborates on this further at paras 52-53. Of particular import I think is the second category he identifies, where the effect of an exercise of prerogative powers is to change the facts to which the law applies. In such cases the exercise has not created or changed the law, merely the extent of its application.

37 Matt Flaherty January 27, 2017 at 15:39

to Robin Levett,

“How does that necessarily follow? Even if the notification is unilaterally reversible, how is that different from the position when it can be withdrawn by consent? It still requires “X” to happen for the rights not to be lost. In the abence of “X”, away go the rights.”

“I don’t agree there’s any meaningful distinction between unilateral reversibility and unilateral irreversibility.”

The difference is what X is. Unilateral reversibility means that X would be probably Parliament but possibly even the government deciding to reject any deal and remain in the EU. Unilateral irreversibility means that once notice is served by government (assuming that is constitutionally valid) X is only a formality. Parliament will eventually have to accept the default if no acceptable deal can be reached and no extension agreed, whether or not it acts at all. Parliamentary approval becomes irrelevant except insofar as it retains the power to reject a deal that government brings before it. Bilateral reversibility is helpful, but it cuts into Parliamentary sovereignty by making it subject to agreement, thereby removing the safety net of a unilateral decision to reject the terms and also maintain the status quo.

38 Jules September 21, 2017 at 10:23

Surely the Court’s error is much simpler?

Their argument seems to turn on the “inevitability” of personal rights being lost.
Why “inevitable”?

Art. 50 is merely a “form” to be filled giving notice of leaving the EU – in 2 years time. As such it is purely administrative.

There is nothing “inevitable” about rights being lost.

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